Lasting Power of Attorney (LPA) – The Complete Guide
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Here’s everything you need to know about making a Lasting Power of Attorney (LPA).
Lasting Power of Attorney (LPA) allows you (the ‘donor’) to nominate people (attorney) to act on your behalf should you become unable to look after your own affairs. There are two types of LPA: Property & Finance; and Health & Care.
Here, we take a trip through everything you need to know about making an LPA – most of which applies to both types of LPA. This guide follows the same ‘sections’ as the LPA forms, making it easy for you to cross reference if you are making an LPA.
Do I need a solicitor to make an LPA?
No. You can complete the process online at the Govt website Make, register or end a lasting power of attorney: Make a lasting power of attorney – GOV.UK (www.gov.uk)
Equally, you may want to use a solicitor! It’s what we do, and the LPA forms are long and quite cumbersome!
Where can I get a free LPA?
You can download the LPA forms from our website for FREE! DOWNLOAD NOW >
You will need form LP1F for Property & Finance, and form LP1H for Health & Care.
Can I use an LPA as soon as it is completed?
No. You have to ‘register’ the LPA with the Office of the Public Guardian before it can be used. They charge a fee of £82 per person per LPA.
How do I complete the LPA forms?
The first couple of pages of the LPA forms are for your benefit to make notes, and they do NOT make up part of the actual LPA. We have set out below guidance on the ‘sections’ of the LPA, and what you should think about in relation to each bit. They are:-
SECTION 1 – Donor
The ‘donor’ is the person making the LPA. You must be over 18, and able to make and understand decisions for yourself (called ‘mental capacity’ or ‘of sound mind’)
You must complete your full names, date of birth, address, and email address. You do not need to sign this part of the form.
Nice and easy – so far so good!
Section 1 of Health LPA is the same as for Finance (above).
SECTION 2 – The Attorney(s)
Your chosen attorney(s) is/are the person(s) you appoint to look after things should you become unable to do so.
Who can be my attorney?
Your chosen attorney(s) should be of sound mind, and over 18. From a practical perspective they should of course be willing and able to look after things for you should the need arise. They must not be bankrupt, or subject to debt relief order.
They can (and invariably are) family members.
How many attorneys can I have?
The LPA forms provide for you to appoint up to 4 attorneys. You can have more than that, and to do so you will need to complete ‘continuation sheet 1’
Do I have to appoint all of my children?
A very common form of appointment is a couple appointing each other, with children thereafter. Do remember that if you are excluding one or more of your children, it may well cause ill feeling, and put those that are appointed in the ‘firing line’.
Can my Solicitor be my attorney?
Yes, solicitors are often appointed where there are limited choices with family members, or simply that the donor does not want to burden family members with the task.
What details do I include for my Attorneys?
You will need to state their full names, date of birth, address and email address (optional). As above, there is space in the form for up to 4 attorneys.
Nobody needs to sign this section of the LPA – it is purely stating the attorney(s) details.
SECTION 3 – How should your attorneys make decisions?
This section asks you to decide how the attorneys make decisions, and in particular, where there is more than one attorney, will they act together, or have the opportunity to act alone too. We have set out below how to complete section 3 of the LPA, what joint/joint & several means, and the pros and cons of them.
You need to tick one of the following:-
- I only appointed one attorney
- Jointly and severally
- Jointly for some decisions, jointly and severally for others
What if I have just one attorney?
If you have just one attorney then this section of the form has no bearing. They will act alone on all matters and so the notion of joint v joint and several does not apply.
What is Joint & Several attorney?
Joint and several means that your attorneys can act either together, or independently of each other. It is generally thought to be the better choice as it provides maximum flexibility.
Also, a joint and several appointment will endure even if one of the attorneys becomes unable to act (as opposed to a joint appointment which fails in its entirety in those circumstances).
As practitioners we are often asked “but what if one of the attorneys does something on their own that is wrong?” The answer to that question probably does not lay in whether you chose joint or joint and several, but more you have chosen the wrong attorneys if you have those concerns!
Remember, an attorney must always act in YOUR best interests as donor. And, should they fail to do so they can be removed from their position by the Court of Protection.
You can indirectly also use a joint and several appointment instead of appointing replacement attorneys (see below).
What is a Joint attorney?
In this case, all attorneys MUST act together on all decisions. This might be something as simple as eg paying a gas bill. This obviously can create an administrative headache.
As above, if you are worried about your attorneys getting up to no good, you are perhaps choosing the wrong people.
If a joint attorney becomes unable to act (eg if they themselves become incapable), then the whole appointment will fail leaving you back to square one.
Jointly for some decisions, joint & several for others
This allows you to dictate that some decisions can be joint and several, whereas others must be joint. This is sometimes used to try to differentiate between run of the mill stuff, and bigger more important things. So foe example, you may want to dictate that selling a house must be done jointly? The LPA forms require you to complete ‘Continuation sheet 2’ to detail your wishes.
Remember, that as per a jointly only appointment, any elements in this that are joint would mean those tasks would become void for any remaining attorneys who were appointed jointly in relation to those specified tasks.
Again, my personal view is that the key is to choose your attorneys wisely, and if you feel able to, avoid creating restrictions or administrative burden.
Nobody needs to sign section 3.
SECTION 4 – Replacement attorneys
This is optional – you don’t have to have replacement attorneys. But, it is good practice to have a back up plan. This can be achieved in some part by having joint and several attorneys from the off (see above).
Reasons to have replacement attorneys
Replacement attorneys will typically step in if one (or more) of the original attorneys can no longer continue to act (eg if they become ill or die).
What information do I include about replacement attorneys?
You need to include the replacement attorneys full names, date of birth, and address.
How many replacement attorneys can I have?
The LPA forms provide for up to 2 replacements, but you can appointment more by completing ‘Continuation sheet 1’. If you have more than one replacement, they will all step in at once.
Will replacements be joint or joint and several?
If the replacements fully replace ALL originally jointly appointed attorneys, then they will act jointly, unless you state otherwise. Remember that the law sees a joint appointment as one – hence the whole first line fails if one of a joint group of attorneys can no longer act. In that case, you cant simply replace the one for one.
Can I set an order of when replacements are appointed?
Yes, you can state an order for replacement attorneys to ‘replace’ original attorneys. But remember, this will only work if the original appointments with joint and several. It gets even more complicated if the original appointment is joint for somethings, but joint and several for others!
Does anyone need to sign section 4?
No. Nobody needs to sign section 4.
SECTION 5 (Health) – Life sustaining treatment
This relates only to the Health & Care LPA. In this section, you will choose whether your attorneys have the authority to “give or refuse consent to life sustaining treatment (as if they were you).
Do remember that a Health & Care LPA can only ever be utilised (in any situation, including this) when you have lost the capacity to make decisions yourself.
As you can see (image below), you must choose either Option A, or Option B. Option A will mean your attorneys can give direction to a medical team. Option B does NOT give the attorneys this authority, but, a medical team will still take into account any views aired by the attorneys (or others).
Life sustaining treatment is care that is needed to keep you alive. This might include anything from CPR, to artificial hydration or nutrition (if you can not eat/drink via your mouth).
Can I direct my Attorneys on my wishes around life sustaining treatment?
Yes, and you should. A common wish is to not be left in a vegetative state. You can leave these views formally in section 7 of the LPA (preferences and instructions), or less formally in some sort of side ‘letter of wishes’. Care must be taken when formally seeking to bind your attorneys with preferences and instructions (see below).
Do I need to sign section 5 Health & Care?
Yes, and your signature must be witnessed here too. Check out the extract of the relevant section below.
You must sign either Option A or B, and your signature witnessed.
Who can witness my signature on life sustaining treatment?
This can NOT be your attorneys. It can be (and invariably is) your certificate provider.
SECTION 5 (Finance) – When can your attorneys make decisions?
This only applies to the Property & Finance LPA. Health & Care can ONLY be used when you reach a point that you can no longer make decisions for yourself. The Finance appointment can however be used before that situation arises. You may just want some help on and off – this happens commonly where, for example, people perhaps live abroad but need things dealt with back in England/Wales.
This is the choices you have (the relevant section of the LPA form):-
As the form points out, choosing to restrict the appointment to only be active when capacity is lost may cause practical problems. As discussed earlier, the bigger question is perhaps are you appointing the right attorney (if you have concerns around when it could be used)?
The general principles apply in any event that your attorneys must act in your best interests, and doing anything secretly without your consent (ie you still have capacity) would be a serious matter.
Nobody needs to sign this section.
SECTION 6 – People to notify when the LPA is registered
This is optional, and designed to provide a safety net at the point of registration. It provides nominated persons (chosen by the donor) to be notified when the LPA is registered. It provides a moment for those people chosen to raise concerns eg around issues of fraud, or undue pressure.
Who can be notified that my LPA is being registered?
Choose someone who has your best interests at heart. It can be anyone you like. It can not be your attorneys or replacement attorneys.
How many people can I choose to be notified?
The form provides for 4 people to be notified. You can choose one more (to a max of 5 in total) by using Continuation sheet 1.
You can have up to 5 people notified.
Does anyone need to sign section 6?
No. If the donor decides to include people to be notified, they simply include their details (see extract above).
What is the process for people being notified or registration?
Just before registration, you (or your attorney depending on who is registering) must notify the chosen people that registration is happening using form LP3. If there is a large gap between making the LPA and registration, it is considered good practice to have spoken to the chosen people at the point of making the LPA. You can explain that they don’t have to do anything at all UNLESS they have concerns at the point of registration. If they don’t have concerns, they do nothing.
SECTION 7 – Preferences and instructions
This section is optional. If left blank, then your attorneys have a clear run to look after things for you without hindrance.
What is a preference?
A preference is just that – you sharing a view of what you would prefer, without seeking to bind your attorneys. Preferences can apply to both types of LPA, and are arguably a good place to be setting out views around life sustaining treatment (Health & Care).
You may hope (for example) that your attorneys only invest in things that are deemed ‘ethical’. Or, that they continue to utilise a certain financial institution or adviser.
What is an instruction?
An instruction will bind your attorneys. You should tread cautiously around giving instructions as you run the risk of tying the hands of your attorneys. Who knows what the future might hold for them should they ever need to step in and look after your affairs for you? And so, the general thinking is to avoid them if you can.
The OPG will scrutinise any instructions given at the point at which the LPA is registered. Any they deem to not be legally correct would have to be removed.
What if I have money held by discretionary fund managers?
There are question marks over the ability of attorneys to continue to leave investments with discretionary fund managers (if you held investments of this type). It follows a case in which the financial institution took the view that their ability to continue to act ended at the point at which capacity of the donor was lost. If you have investments of this type, and would like your attorneys to have the option to continue to use that investment, then section 7 is where you would provide specific instruction/authority for them to do so.
What about payment of normal fees for a professional attorney?
If you have appointed a professional attorney (solicitor for example), then you should include an instruction confirming that their normal fees should be charged/paid for.
Does anyone sign section 7?
No – nobody has to sign instructions and preferences.
SECTION 8 – Legal rights and responsibilities
This section must be read by ALL people signing the LPA (not witnesses). The notice or warning given states as follows:-
In sections 9 to 11, you, the certificate provider, all your attorneys and your replacement attorneys must sign this lasting power of attorney to form a legal agreement between you (a deed).
By signing this lasting power of attorney, you (the donor) are appointing people (attorneys) to make decisions for you.
LPAs are governed by the Mental Capacity Act 2005 (MCA), regulations made under it and the MCA Code of Practice. Attorneys must have regard to these documents. The Code of Practice is available from www.gov.uk/ opg/mca-code or from The Stationery Office. Your attorneys must follow the principles of the Mental Capacity Act:
- Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
- Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
- Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
- Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
- Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
Your attorneys must always act in your best interests. This is explained in the Application guide, part A8, and defined in the MCA Code of Practice.
Before this LPA can be used it must be registered by the Office of the Public Guardian (OPG). Your attorneys can only use this LPA if you don’t have mental capacity.
Cancelling your LPA: You can cancel this LPA at any time, as long as you have mental capacity to do so. It doesn’t matter if the LPA has been registered or not. For more information, see the Guide, part D.
Your will and your LPA: Your attorneys cannot use this LPA to change your will. This LPA will expire when you die. Your attorneys must then send the registered LPA, any certified copies and a copy of your death certificate to the Office of the Public Guardian.
SECTION 9 – Signature (donor)
This is where the donor signs, and their signature must be witnessed. There is a declaration at the start which they must read.
Who can witness the donor’s signature?
This is invariably the certificate provider. Failing that it just needs to be someone over 18, of sound mind, and independent. Ideally, they would not be related to the attorneys.
Who can not witness the donor’s signature
The attorneys (and replacements if there are any) can not witness the donor’s signature.
When should the donor sign section 9?
Sections 9, 10, and 11 must be signed in chronological order. It is OK for this to be on the same day.
SECTION 10 – Signature (certificate provider)
The certificate provider is confirming to the Office of the Public Guardian that the donor:-
1 Capacity – is of ‘sound mind’
2 Duress – is not being put under pressure to make the LPA against their will
3 Knowledge – they fully understand what the LPA does
Who can be a certificate provider?
Your certificate provider can be someone you have known personally for 2 years or more. OR, you can have a professional certificate provider. This is a service that QLAW offers if you wish to make your own LPA, but don’t wish to share personal matters with a friend or colleague.
Who can not be a certificate provider?
The following can not be certificate provider:-
- attorney or replacement (or family of them)
- member of the donor’s family (including spouses, in laws, and step family)
- ‘common law’ partner
- donor or attorneys business partner
- donor or attorneys employee
- owner or manager or employee of a care home where the donor resides
Does the certificate providers signature have to be witnessed?
No, the certificate provider simply completes their details and signs – there is no witness needed for their signature.
When does the certificate provider sign the LPA?
The certificate provider must sign after the donor (section 9 above), and before the attorneys (section 11). This can all be the same day, but it doesn’t have to be. The critical thing is that sections 9, 10, and 11 are signed in that order.
SECTION 11 – Signature (attorney or replacement)
As with the other signature parts, there is a declaration that the attorney must read and then sign to agree with.
There is space for up to 4 attorney’s to sign. If you have more than 4 attorneys, you simply produce a further copy of the page.
As with the donor’s signature, the attorneys signatures must be witnessed.
Who can witness the attorney’s signature?
Ideally the witness of the attorney will be someone over 18 and independent. The certificate provider can witness, as can attorneys/replacements (witness each others).
Who cannot witness the attorneys signatures?
The donor can not witness the attorney’s signatures.
When do the attorneys sign?
The attorneys must sign AFTER both the donor and the certificate provider. Ideally this should happen ASAP after the donor and certificate provider have signed, though there is no prescribed timescale. It can happen same day, but the chronological order of signing must be adhered to come what may.
SECTION 12 – Register your lasting power of attorney
Either the donor of the attorney(s) can register the LPA. Section 12 is self explanatory. If it is the donor they simply tick the first box. If it is the attorney(s), they must tick the appropriate box, and confirm which attorneys are registering.
Nobody needs to sign section 12.
SECTION 13 – Who do you want to receive the LPA?
This section deals with where the LPA will be sent once registered. The content is self explanatory, and looks like this:-
Does anyone sign section 13 of the LPA?
No. Nobody has to sign this section.
Where should I get the OPG to send the LPA once registered?
The registered LPA can be sent wherever you choose – eg to your solicitor if they have prepared the LPAs for you.
SECTION 14 – Application fee
The court fee is currently £82 per person per LPA. No VAT is payable on this. You may be eligible to a reduced fee if you have low income. You will need to provide proof to the Office of the Public Guardian (OPG) that you meet the low income criteria.
SECTION 15 – Signature (registration)
The person registering the LPA now signs this final section. It will be EITHER the donor, OR attorney(s).
If joint attorneys are registering (as opposed to joint and several), they must all register.
The signature(s) in section 15 do NOT need to be witnessed. These must be the final signatures (as above) with all previous signatures having happened chronologically through the form.
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