With more people worried about the effects of Covid-19, we are getting more enquiries about Lasting Power of Attorney (LPA) and how to apply for them. Yes, you can use the Governments website to do it on line but there are many pitfalls to be avoided.  An LPA cannot be used until it has been registered with the Office of Public Guardian (OPG). As the Office of Public Guardian are taking over a month to complete their processing, and then have to wait a further statutory four weeks before your will receive them, it is usually about ten weeks before an attorney can do anything to help the donor (the person giving the power). If there any errors in the LPA when submitted to the OPG they will just return it and it is unlikely you will get it back in under a month. The ten-week process has to start all over again, so now you could be up to fourteen weeks before you can deal with matters for the person you are trying to help. There will be another fee to pay. But it is important to get them done.

Why have a Lasting Power of Attorney – in brief

Even where there are married couples, the law does not allow one to discuss or make decisions for the other on assets in sole names.  Should one of you have an accident or become so ill that you are unable to manage your financial affairs the other would be totally restricted.

Lasting Powers of Attorney grant the attorney the power to administer those financial affairs until such time as the donor has either recovered or dies.

In an LPA for Health and Welfare, your attorney can make decisions about anything to do with your health and personal welfare. This includes decisions about medical treatment, where you are cared for and the type of care you receive, as well as day-to-day things like your diet, how you dress and your daily routine.

You can list any instructions that your attorney must follow, or any preferences that you would like them to take into account when making decisions on your behalf.

[we advise on these]. You must also choose whether you want your attorney to be able to make decisions about life-sustaining treatment. If you choose not to, then all decisions about life-sustaining treatment will be made by your healthcare team, unless you have made an Advance Decision to Refuse Treatment.

The technical stuff

 A Lasting Power of Attorney (LPA) is a legal tool that allows you to state who you would like to make decisions on your behalf, should you become unable to do so in the future. It lets you choose a person (or people) you trust to act for you. This person is referred to as your attorney.

There are two different types of LPA: Property and Financial Affairs LPA and Health and Welfare LPA. Each type covers different decisions and there are separate application forms for each. You can choose to make both types or just one. You can have the same attorney for both or you can have different attorneys.

Property and affairs LPA

A Property and Affairs LPA covers decisions about your finances and property. If there comes a time when you can’t manage your finances anymore, the attorney will do this for you. This can include paying your bills, collecting your income and benefits, or selling your house. However, if you wish to, you can restrict their powers, or place conditions on what they can do. It can only be used once it has been registered at the Office of the Public Guardian (OPG). The OPG is responsible for the registration of LPAs (for more information see the ‘Office of the Public Guardian’ section in this factsheet). It can then be used even while you still have mental capacity to deal with these things yourself.

Health and Welfare LPA

A health and welfare LPA allows the attorney to make decisions on your behalf about your health, care and welfare, if there comes a time when you are unable to make these decisions for yourself. A health and welfare attorney could make decisions about where you live, for example, or day-to-day care including your diet and what you wear.

You can also give your health and welfare attorney the power to accept or refuse life-sustaining treatment on your behalf. You will be asked whether you wish to do this or not on the form, and you will need to state your intention clearly. (See note below).

A health and welfare LPA can only be used once the form is registered at the OPG AND you are in a position where you no longer have the mental capacity to make decisions about your own welfare.

Benefits of making an LPA

There are a number of reasons you may wish to make an LPA:

  • It can be reassuring to know that, if you are unable to make a decision for yourself in the future, your chosen person will make these decisions for you.
  • Making an LPA ensures that the person you want to make decisions for you will be able to do so. This prevents a stranger, or someone you may not trust, from having this power.
  • An LPA can reduce problems that may occur in the future. It would be more expensive and time-consuming for family or friends to try to gain a similar power in the future.
  • Making an LPA can help prompt discussions with your family or others about your future wishes.

 Who can make an LPA

To make an LPA you must be over the age of 18. You must also have the mental capacity to make this decision. This means you are deciding for yourself that you wish to make the LPA, and you understand what this means. For more information about mental capacity see factsheet 460, Mental Capacity Act 2005 Code of Practice.

Who can be an attorney

You can choose anyone you wish to be your attorney, as long as they are over 18. For a Property and Financial Affairs LPA, they cannot be bankrupt.

It’s important to think carefully about who you will appoint. Think about who you trust to make these decisions for you, and also whether the person is reliable and has the skills to carry out the role. You can choose to have more than one attorney. [Recommended]

Most people will choose a relative or close friend, but you can also ask a professional such as an accountant or solicitor. A professional may charge for their time, and you need to name an individual rather than an Organisation or company. The person must also be willing and able to carry out the role.

You might also consider appointing a replacement attorney. A replacement attorney is the person who you would want to make decisions for you if your first choice attorney is no longer able or willing to be your attorney.

 How an attorney acts

If you choose to have more than one attorney, you must decide how your attorneys will act. They can make decisions together (‘jointly’), they can act together and separately (‘jointly and severally’), [Recommended] or a combination of the two; these terms are explained further below:

  • Jointly – this means that the attorneys must always act together, and therefore must agree all decisions and both sign documents.
  • Jointly and severally – attorneys can act together but can also act on their own.
  • Jointly in respect of some matters and severally in respect of others – for certain decisions all your attorneys must agree, but for other decisions they can act independently. For example, selling property or decisions about medical treatment could be for all attorneys to agree, but for day-to-day decisions such as diet or dress they can act on their own.

When making decisions, your attorney must follow the Mental Capacity Act. This means that they:

  • must act in your best interests
  • must consider your past and present wishes
  • cannot take advantage of you to benefit themselves
  • must keep all your money separate from their own.

If the attorney fails to comply, the LPA could be cancelled. If an attorney has taken advantage of you, this will be investigated by the OPG and the person could be prosecuted. Having an LPA in place can therefore offer you protection from potential future abuse.

 How to make an LPA

To make an LPA you will need to complete an LPA form. There are separate forms for the two different types. The form needs to be printed, signed and sent to the OPG. Both include guidance notes which are extremely useful and should be read carefully.

 Signatures required

Once you have completed the form, you will need to get someone to sign it to state that you have the mental capacity to make an LPA. This means that they certify that you have the ability to make this decision; you understand what an LPA is, and you made the decision yourself. The signed form is a ‘certificate of capacity’ and the person is called the certificate provider. They can be:

  • a professional, such as your doctor, social worker or a solicitor
  • someone who has known you for two years, but is independent, i.e. isn’t a family member or an attorney and they will not benefit from the LPA (there is more information about this in the guidance notes). [We are qualified to provide this as part of the service]

You also need to sign the form in front of a witness [We provide this as part of the service], and each attorney must sign the form to say that they agree to act as your attorney if needed in the future. They will also sign to confirm that they understand the duties this involves.

In addition, you are asked if you would like to list one or more ‘named person’. A named person is someone who you want to be alerted if there is an application to register the LPA. This could be almost anyone, for example a friend or relative can be your ‘named person’. The purpose of this is to provide you with an additional safeguard. [Optional, Not usually needed in a family situation and where there is a professional acting as your Certificate Provider].

Next steps

We submit the form to the Office of the Public Guardian (OPG). The form must be registered at the OPG before it can be used. There is a fee of £82 for registering each LPA, so if you are registering a property and affairs LPA and a health and welfare LPA, you will have to pay twice. You may be exempt from having to pay the fee if you cannot afford it.

Office of the Public Guardian

The Office of the Public Guardian is responsible for the registration of LPAs, including dealing with objections and maintaining the register of LPAs. The OPG also has a contact centre where you can ask any questions

The OPG will also deal with any issues (including complaints) about the way in which an attorney is exercising their powers. If there are any problems, the OPG may pass on the case to the Court of Protection, who can:

  • decide whether a person has capacity to make particular decisions for themselves
  • make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions, for example making a decision about where someone lives
  • decide whether an LPA is valid
  • remove attorneys who fail to carry out their duties
  • hear cases concerning objections to register an LPA (someone may object to an LPA being registered if they feel that the person was forced into making it, or that the proposed attorney is not suitable).
  • Occasionally, they may refer a cased to the police where a fraud is suspected.

Additional points:

 If you complete and register the forms now, it does not mean that you will no longer be able to make decisions for yourself.

  • If you make a health and welfare LPA, your attorney cannot make decisions unless there comes a point where you cannot make these decisions for yourself. This is different for the property and affairs LPA.
  • An LPA is a powerful and important legal document, and you should seek advice from a legal adviser with experience of preparing them. There will be costs involved.
  • If you don’t make an LPA and become unable to make decisions for yourself, there may be a time when no one can do this for you, as no one will have the legal power to act on your behalf. This can make things like paying bills, including care fees or moving to a more suitable property difficult, as well as making decisions about your future care.
  • In this case, someone may need to apply to the Court of Protection to become your Deputy. This can give them similar powers to that of an attorney. The process of becoming a Deputy is very much more time-consuming and costs much more than establishing an LPA while the donor still has mental capacity.
  • There are also ongoing requirements that a Deputy must fulfil such as paying an annual fee and submitting an annual report, so it can be easier for someone to be an attorney under an LPA rather than applying to be a Deputy.
  • There are also ongoing requirements that a Deputy must fulfil such as paying an application fee of £365. You’ll also need to pay £485 if the court decides your case needs a hearing  and annual fee of possibly £320 and must submit an annual report. You’ll also need to pay a £100 assessment fee if you’re a new deputy. As you can see, it can be easier and a lot less expensive for someone to be an attorney under an LPA rather than applying to be a Deputy.
  • In order to help safeguard the interest of a vulnerable person who has lost capacity Deputies are usually required by the Court to obtain “security”. The level of security is set by the Court and is subject to judicial independence. It can be based on a number of factors including the size of the vulnerable person’s estate and the extent to which the Deputy will have access to it. Most Deputies choose to fulfil this requirement by obtaining a Surety Bond**. This is another expense.

 **[A Surety Bond is an ‘on demand’ guarantee of the performance of a Deputy. The Bond safeguards the assets and estates of the vulnerable person from financial losses suffered by them as a result of the failure of the Deputy to perform the agreed duties expected by the Public Guardian. A Deputy will not be able to start acting for the vulnerable person until “security” is in place.]

Having said all that, it’s actually very simple – just call, text or e mail to Graham on:

Phone: 0798 883 0691, e-mail: kent@lifetimetrustees.com or contact here.

or write to:

Lifetime Trustees Ltd.

  71 Heathlands

Hastings

TN35 4QZ

I will help you every step of the way.