What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a document which gives the authority to someone (the attorney(s)) to officially manage the affairs on behalf of someone else (the donor).
There are two types of Lasting Power of Attorney (LPA) – one which caters for Property and Finance and the other which caters for Health and Welfare.
A Property and Finance LPA typically allows an attorney to assist with paying bills, dealing with banks and selling property for the donor. A Health and Welfare LPA gives an attorney the power to make decisions about medical treatment, staying in a care home and even life sustaining treatment of the donor.
To be valid, an LPA must be registered with the Office of the Public Guardian. Once the LPA is registered it is returned to the attorney(s) having been stamped on each page to indicate that it can be used.
Before October 2007, it was only possible to make what was called an Enduring Power of Attorney (EPA), which was very similar to an LPA but could only be made in respect of Property and Finance. EPA’s made before October 2007 are still valid however and can still be registered with the Office of the Public Guardian but only once the donor is becoming or has become mentally incapable of managing their affairs.
Benefits of an LPA
Making an LPA is very useful, even if you don’t need it in the immediate future. As long as the LPA has been completed correctly, then you don’t need to register it until you feel that you are getting to the stage whereby you may be struggling with dealing with paying bills, going to the bank or selling your home. However, registering it where there is no immediate need to use it has the advantage of enabling the attorney to use the LPA without delay in the future.
One crucial difference with the Health and Welfare LPA is that it can only be used by the attorney(s) once the donor has lost their capacity. The Property and Finance LPA can be used as soon as it is registered.
The Office of the Public Guardian oversees LPA’s – and can be called upon to ensure that attorneys act in the best interests of the donor. They also deal with cases whereby an attorney abuses their position and can have them removed as attorney.
How to Make an LPA
If you are considering making an LPA then you should think carefully about whom to appoint as attorney(s). An attorney will need to be over the age of 18, have mental capacity and ideally be someone you can trust and who can be available to assist with your affairs.
The donor will need to be over the age of 18 and crucially must have mental capacity to make an LPA. If someone is judged not to have capacity then an LPA cannot be made and instead someone such as a family member or close friend, will have to apply to the Court of Protection to become a deputy – a process which is longer, more complex and often more costly than making an LPA. Additionally, the Court of Protection is a lot more reluctant to appoint someone for health and welfare deputyships, preferring only to appoint for property and affairs.
The process of making an LPA involves a lot of administration and then notifying nominated people about the fact that the LPA is being registered. Most people instruct a solicitor to do this on their behalf as there are a number of steps involved and if the details are incorrect or procedure not carried out in the right way then the Office of the Public Guardian will reject the application.
Find Out More...
If you are interested in making an LPA or want to find out more information, please get in touch. We make LPA's on a frequent basis as well as registering EPA’s and carrying out Deputyship applications and we have several lawyers who can assist you.
Post By: Chris Air
This article is for general information only and does not constitute specific advice. You should not rely on the information in this article. Fiona Bruce Solicitors recommends that you seek our specific advice if you wish to rely on the any part of this article. Whilst Fiona Bruce Solicitors makes every effort to ensure that the article is accurate, Fiona Bruce Solicitors excludes all liability for claim, loss, demands or damages of any kind whatsoever (whether such claims, loss, demands or damages were foreseeable, known or otherwise) arising out of or in connection with the use of this article or any other information contained on this website. Any information provided only applies to England and Wales.