Frequently Asked Questions
Lasting Powers of Attorney
This answers some of the commonly asked questions that clients have. If you have a question that is not covered in the list below, then please let us know.
A LPA is a legal document whereby a person (known as the donor) gives another person or persons (the attorney) authority to make certain decisions on his/her behalf.
There are two types of LPA’s:
Property and Financial Affairs – allows your attorney to make decisions and deal with your property and financial affairs. This LPA can be used when you have full mental capacity and will remain effective if you lose your mental capacity in the future. There are many reasons why you may want your attorney to carry out tasks such as paying your bills or collecting your benefits whilst you still have mental capacity. For example you may find it difficult to talk on the telephone or struggle to access the bank. If you only want your attorney to act for you when you do not have mental capacity, this can be specified in your LPA.
Health and Welfare – allows your attorney to make health and welfare decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
You can plan in advance the decisions and actions you might want taken on your behalf at a time when you no longer have capacity. You can choose someone that you trust and who cares about you. This will enable you to feel confident that the right decisions will be made on your behalf if and when you no longer have mental capacity.
If you choose not to make a LPA and you later lose your mental capacity through dementia for example, you will be unable to make a LPA. Instead it may be necessary for an application to be made to the Court of Protection (COP) for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming. A LPA also avoids potential disputes from arising as you will already have made your wishes clear.
If you want to revoke an old LPA you have made in the past or you wish to change your attorney then you will need to do this through a legal document called a Deed. You must also notify the Office of the Public Guardian (OPG) (see question 12 for an explanation of the role of the OPG). If we are making a new LPA for you then this will be included in our costs.
Any EPA validly made before 1st October 2007 can still be used but only in respect of your property and financial affairs. If you wish to revoke your EPA this must also be done by signing a Deed. If you have asked us to make a LPA for you then we will also include this service in our costs.
If you want to keep your old EPA but you have not registered it with the OPG then it is a good idea if you do this. The OPG have the power to investigate any concerns over the misuse of LPA’s and registered EPA’s, thus giving you protection against financial abuse or mismanagement.
Remember that EPA’s can only cover decisions about your property and affairs. If you want someone to make decisions about your health and welfare when you have lost your mental capacity then you might want to consider setting up a health and welfare LPA to work alongside the EPA.
Anyone i.e.: not just a relative, aged 18 or over who has mental capacity and who is not bankrupt. If the attorney becomes bankrupt in the future then it is important that the OPG is informed as that attorney will no longer be allowed to act.
If your attorney is your spouse or civil partner then should your marriage or civil partnership be dissolved or annulled, the LPA may be ineffective. This is unless you have:
Included a condition in the LPA that your spouse or civil partner can continue to act as an attorney in such circumstances;
Appointed a replacement attorney (see question 8); or
Appointed more than one attorney and the attorneys are appointed to act jointly and severally (see question 5).
It is important that your attorney is trustworthy and has the appropriate skills to make the proposed decisions.
This will depend on how you have appointed the attorneys to act. You can appoint your attorneys to act:
Jointly – all the attorneys must act together, none can act independently i.e.: all of the attorneys must agree on a decision or sign a document. Appointing your attorneys to act together can be used as a safeguard, however it may be impracticable in reality e.g.: all of the attorneys would have to agree to sell your property; if they did not, it could not be sold. It will also mean that the LPA will be cancelled if one of the attorneys died or lost the capacity to act.
Jointly and severally – your attorneys can act together or any one attorney can act on their own. In reality this is a very practical way of appointing your attorneys to act as they do not have to be together when making decisions. It also means that only one attorney would need to sign cheques and other documents.
Jointly in respect of some matters and jointly and severally in respect of others – your attorneys are required to agree on certain specified decisions but can act on their own when making other decisions. For example you may state that all your attorneys must agree on the sale of your house but they can act on their own when paying bills. This gives you flexibility but you must clearly set out the circumstances in the LPA. Some banks have refused to act on this basis and it can cause confusion when dealing with affairs.
Please be aware that if you fail to specify how you want your attorneys to act, the attorneys are automatically appointed to act jointly.
Property and Affairs LPA
The following are the types of decisions that can be made using an unrestricted LPA:
• Buying or selling property/land.
• Paying the mortgage/rent.
• Opening, closing and operating bank, building society and other accounts.
• Paying bills.
• Giving people access to your financial information.
• Receiving any income on your behalf such as benefits.
• Dealing with your tax affairs.
• Insuring, maintaining and repairing your property.
• Dealing with investments and savings.
Your attorney can make small gifts to family and friends on occasions such as birthdays or to a charity to which you made or might reasonably have expected to make gifts. Any gift must be reasonable in size to everything you own. If the attorney wants to make larger gifts then they must apply to the COP for permission.
Health and Welfare LPA
Where you should live and who you should live with.
• Your day to day care, including diet and dress.
• Consenting/refusing medical examination and treatment on your behalf.
• Arrangements for medical, dental or optical treatment.
Please be aware that it does not entitle the attorney to demand particular medical treatment for you. At all times, when making decisions on your behalf, your attorney must follow the five core principles laid down in law by the Mental Capacity Act 2005:
1. They must assume that you can make your own decision unless they establish that you cannot do so;
2. They must help you make decisions on your own and only treat you as unable to make a decision if all practical steps to help you to do so have failed;
3. They must not treat you as unable to make a decision because you want to make an unwise decision;
4. They must make decisions and act in your best interests when you lack capacity to make a decision; and
5. Before making the decision, they must consider whether they can make the decision or act in a way that does not restrict your rights and freedom but is still in your best interests.
Your attorney should consult family members or carers or anyone else interested in your welfare if this is practical and appropriate.
You can appoint a person to replace any one of your attorneys. The replacement attorney will only become your actual attorney if one of the attorneys become permanently unable to act for you.
If you are only appointing one attorney then it is a good idea to appoint someone as a replacement attorney. If you do not do this and the sole attorney dies or is unable to act then the LPA can no longer be used and you will have to create a new LPA (if you still have capacity). If you lack capacity someone will have to apply to the COP to be appointed as your deputy.
As part of the process of creating a LPA you are required to appoint somebody to be your certificate provider. The role of the certificate provider is to sign the LPA to say that as far as they are aware:
a) You understand the purpose of the LPA and the scope of the authority you are granting to your attorney;
b) No fraud or undue pressure is used to induce you to create the LPA; and
c) There is nothing else which would prevent the LPA from being created.
The certificate provider must sign the LPA to confirm the above. We act as a certificate provider for our clients and do not charge an additional fee.
You can choose to notify a person or persons that you intend to register your LPA with the OPG. It is not a legal requirement. The person or persons you notify can be a relative or a friend although it does not have to be.
The person you notify has a right to object to the registration of the LPA on certain grounds. Therefore by choosing to notify a person or persons you can build an additional safeguard into your LPA against undue pressure.
The LPA must be registered with the OPG before it can be used and before any decisions can be made by your attorney. Once the LPA is registered the attorney can start making decisions on your behalf immediately if you wish them too. You should discuss with your attorney when you envisage them being able to use their powers.
Alternatively you may have stated in your LPA, it can only be used after it has been registered if and when you lack mental capacity.
It takes approximately eight weeks for the OPG to register LPA’s. Please see question 13 for the options open to you if you need someone to act for you in the meantime.
The OPG is the body responsible for registering EPA’s and LPA’s. It also deals with the supervision of deputies appointed by the COP. The OPG provides useful advice and guidance on LPA’s and the role of attorneys. For more information please refer to their website: http://www.justice.gov.uk/about/opg.
You can also contact the OPG on: 0300 456 0300 (Please note the OPG cannot provide legal advice).
The COP is a distinct court created by the Mental Capacity Act 2005. The COP has the power to rule on whether an individual has mental capacity, if this is disputed, and can make decisions on behalf of a person who lacks mental capacity. The COP can also rule on whether acts and decisions by attorneys are lawful. This is the court that is also responsible for appointing a deputy for a person who no longer has mental capacity.
If you wish your attorney to start acting for you before your LPA has been registered with the OPG then you will need to create a General Power of Attorney. This document will give your attorney the power to access your bank accounts and sign cheques on your behalf for example.
A general Power of Attorney is more limited than a LPA as it can only be used whilst you have mental capacity.
If you would like your attorney to act for you whilst you are waiting for your LPA to be registered then please let us know and we can draft a General Power of Attorney for you to sign.
You can revoke the LPA at any time whilst you still have mental capacity. If you wish to revoke a LPA then it must be revoked through a legal document called a Deed and the OPG must be informed.
If you would like to revoke a LPA then please let us know and we can do this for you.
Upon your death the LPA will automatically come to an end. The OPG must be informed and sent the original document along with any certified copies. The OPG will then remove the LPA from its register and inform all of the attorneys.
If there is only one attorney appointed then the LPA will automatically terminate when that attorney dies. The OPG must be informed.
If you still have mental capacity then you will need to create a new LPA.
If there is more than one attorney and they are appointed to act jointly and severally, then the surviving attorneys can continue to act and the LPA will not end.
Please Note: The OPG must be kept informed of changes to the personal details of donors and attorneys.