Your LPA will include various people from you (donor), to witnesses, and more…
There are various parties to a Lasting Power of Attorney (LPA). Here, we explain who does what.
There are two types of LPA, and where necessary we differentiate between ‘Finance’, and ‘Health and Care’. The roles are essentially the same across both types of LPA. They are:-
- Replacement Attorney(s)
- Certificate Provider
- Persons to be notified
LPA – Who is the Donor?
The donor is the person making the LPA – the person ‘giving’ the power to the attorney(s).
To be a donor you must be over 18 years of age, of sound mind (and understand the nature and effect of making the LPA), and not being put under pressure to make the LPA. These key requirements are the elements that the certificate provider (see below) will confirm are indeed the case.
The donor decides on everything, including: who the attorneys will be; what if any restrictions there might be; whether there will be substitute attorneys; whether people will be notified on registration of the LPA; and in the case of the Health & Care LPA, they will even decide upon whether the attorney(s) will have the power to decide that no end of life care be given.
The donor’s details are included at s1 of the LPA forms.
LPA – What is an Attorney?
The attorney(s) is/are the person being given the power (by the donor).
They too must be over 18, and of sound mind. Your attorney can be anyone you choose, though it is often a close family member. If you don’t have close family, or would rather not trouble them with the burden of acting as your attorney, you can appoint a professional (for example your solicitor).
In the event of them being needed (you lose capacity), your attorneys can then deal with your finances in just the same way as you did (with the Finance LPA). In the absence of any restrictions you imposed, this can include anything from paying a bill, to selling your house! The Health LPA allows your attorney(s) to decide on things such as where you receive care, through to refusing end of life treatment on your behalf.
Attorneys must look after your affairs in your best interests, and without personal benefit to themselves.
The attorneys details are set out in s2 of the LPA forms. The forms provide for 4 attorneys to be appointed, though you can appoint more if needed.
Joint or Joint & Several Attorneys?
If you have more than one attorney, you will need to decide whether they are to act jointly, or joint and severally.
Jointly means they must do everything together, and if one attorney becomes unable to act, the whole appointment fails.
Joint and several means they can act either together, or independently. This is generally thought to be the preferred method as it avoids administrative issues. And, if one attorney can no longer act, the remaining attorneys can continue as was.
One common concern is whether attorneys might do something improper (eg benefit themselves). And, given that, is a joint appointment a good idea to protect from that scenario. The simple answer is no! If you have concerns about this then you are choosing the wrong people to act as your attorney!
Be sure to have the various parties sign the LPA in the correct order!
LPA – Do I have to have Replacement Attorneys?
No, you do not have to have replacement attorneys – this is optional.
A replacement attorney must meet the same criteria as an attorney – ie of sound mind, and over 18. As with a ‘first’ attorney, they must not be bankrupt.
Actually, the potential issues around replacement attorneys are significant! In particular, care should be taken around joint or joint and several appointments, and equally any order in which replacements would become effective.
Although a replacement attorney can help out as soon as needed, it is necessary to formally notify the Office of the Public Guardian (OPG) that this change has happened. This process requires the original LPA to be sent to the OPG.
As a slightly more flexible alternative to having replacement attorneys, you might want to consider appointing your ‘alternatives’ as joint and several attorneys in the first instance. This removes the need for having to notify the OPG if the ‘first’ attorneys become unable to act. A good example of this potentially working well is within families. So, where spouses appoint each other, they may want (grown up) children to act if the other spouse can’t. Yes, this can be covered off with a replacement appointment, or the slightly easier alternative is to have appointed spouse AND children in the first instance on a joint and several basis.
What is a Certificate Provider?
Your certificate provider will ‘certify’ to the OPG that:-
- You are of sound mind
- You don’t appear to being forced into making the LPA
- There is no fraud involved in making the LPA
- You understand the full nature and impact of the appointment
They can be either:-
- Personal – a friend or colleague who is over 18 and who you’ve known for at least 2 years
- Professional – such as your solicitor or doctor
QLAW offers a certificate provider service if you wish to make your own LPA, but need a certificate provider. > Find out more
> Read more in our ‘What is a Certificate Provider’ article
Persons to be Notified
This is not compulsory. But, you can include up to 5 people to be notified if you would like to. This is designed to be a safety net against (for example) donor’s being forced into making an LPA against their wishes.
If you include persons to be notified, it gives those persons the opportunity to raise concerns with the OPG at the point at which the LPA is registered. They should therefore be people that have your best interests at heart.
Who can witness an LPA?
The process for signing and LPA must be chronological as follows:-
- Certificate provider
The donor’s signature can not be witnessed by an attorney (or replacement) and vice versa. The certificate provider’s signature does not need to be witnessed.
The certificate provider can witness the signatures of both donor and attorneys.
Attorneys are permitted to witness the signature of each other, but (as above) they are not permitted to witness the signature of the donor.