LPA
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LPA General
A Lasting Power of Attorney (LPA’) is a legal document giving someone you trust (your Attorney) the power to make decisions on your behalf. Read more here >
There are two types of LPA – Finance and Health & Care.
Your Attorney can be anyone you choose. You should trust the person as they will be making important decisions on your behalf if you have lost capacity and are not able to. They need to be over 18 and cannot be bankrupt.
You should think carefully about the practicalities of who you appoint. Do they have the time? Are they willing to act? And is it convenient for them and you (for example are they local)? Who can be an Attorney?
An LPA grants your appointed Attorney with the authority to deal with your affairs on hour behalf in the event of you losing capacity.
An Attorney is the person you appoint to make decisions on your behalf when or if you lose capacity.
A Certificate Provider is the person who certifies that you have capacity to be making the LPA at the point at which you execute the document. Read more about Certificate Provider >
The role of a Lasting Power of Attorney is to provide the legal power to your Attorney to make and execute decisions on your behalf in the event of you losing capacity.
The Lasting Power of Attorney replaced the old Enduring Power of Attorney on 1 October 2007. After this date you can only make Lasting Powers of Attorney. If you made an Enduring Power of Attorney before this date and it has been prepared and signed correctly it is still valid. Check out our article which explains this further.
A Lasting Power of Attorney covers property & financial decisions and health & welfare decisions. Your attorney can make decisions if you lose capacity. An Ordinary General Power of Attorney can only be used within specific powers in the document and whilst the person who made it has capacity.
A Lasting Power of Attorney is valid until you die. At this point your executors or administrators if you die without a Will will take over the administration.
You can cancel your LPA at anytime provided you have capacity to do so. How do I cancel a Lasting Power of Attorney?
Yes, your attorney(s) can resign at anytime. If all of your attorneys resign this will bring the LPA to an end.
No you cannot use an LPA straight away. It needs to be registered at the Office of the Public Guardian before it can be used. It can then only be used within the powers and or restrictions contained in the document.
The Office of the Public Guardian (or ‘OPG’) is an executive agency sponsored by the Ministry of Justice. It ‘helps people in England & Wales stay in control of decisions about their health and finance and make important decisions for others who cannot decide for themselves’ ref- Office of the Public Guardian – GOV.UK (www.gov.uk).
As an attorney your legal responsibility is to act in the donor’s best interest and taking reasonable care when making decisions on their behalf. You must act in accordance with the LPA and the powers/ restrictions contained within the LPA. You must help the donor make decisions where possible rather than simply making decisions on their behalf or taking control.
An attorney must always act in the best interest of the Donor – the person who made the LPA. You must help the Donor reach their own decisions first. If they are not able to then you can make the decision. You must follow any instructions or restrictions contained in the LPA. Attorneys should take into consideration the preferences that the Donor has made.
Under the property and financial affairs Lasting Power of Attorney, the LPA may give the Attorney authority to make decisions whilst the donor still has mental capacity to make decisions their selves. If this option is not selected, then the Attorney can only make decisions once the Donor has lost capacity.
Under the health and welfare Lasting Power of Attorney Attorneys can only act once the Donor has lost capacity. When starting to use the LPA the Attorney much inform people involved in the Donor’s care, such as doctors, carers, family and friends.
If you have any questions about LPA’s that are not covered here, do get in touch with our expert team of Lasting Power of Attorney solicitors who will be happy to help. You can email them on pcd@Qlaw.co.uk, or call 03300 020 365
A property & affairs LPA is a legal document where you can appoint someone on your behalf to make decisions relating to your property and financial matters.
Depending on which option you select when making the LPA you can elect for them to act whilst you have capacity and if you lose capacity. You can also restrict it so they can only act when you no longer have capacity.
There are two types of Lasting Power of Attorney. They are:-
- Property & Affairs LPA
- Health & Welfare LPA
Yes, your attorney can sell your house! This assumes that there are no restrictions in the Lasting Power of Attorney precluding this.
- Property can include any property (eg a house, flat or commercial unit) in your name. It can also include land.
- Affairs include anything financial from operating bank accounts, dealing with pensions, the DWP right through to mobile phones and DWP
You need to complete form LP1F and send it to the Office of the Public Guardian to be registered.
Yes, an EPA does cover property & affairs. Have a look at this article to see the difference between EPAs & LPAs.
Under a Lasting Power of Attorney (LPA) you look after the donor’s money as they would otherwise have done had they not lost capacity. That will include:-
- Their bank accounts/ savings accounts
- Property
- Pensions
- Benefits
No! A Lasting Power of Attorney is unlikely to be recognised abroad. LPA’s are a legal document recognised and valid in England & Wales.
As an attorney your legal responsibility is to act in the donor’s best interest and taking reasonable care when making decisions on their behalf. You must act in accordance with the LPA and the powers/ restrictions contained within the LPA. You must help the donor make decisions where possible rather than simply making decisions on their behalf or taking control.
An attorney must always act in the best interest of the Donor – the person who made the LPA. You must help the Donor reach their own decisions first. If they are not able to then you can make the decision. You must follow any instructions or restrictions contained in the LPA. Attorneys should take into consideration the preferences that the Donor has made.
Under the property and financial affairs Lasting Power of Attorney, the LPA may give the Attorney authority to make decisions whilst the donor still has mental capacity to make decisions their selves. If this option is not selected, then the Attorney can only make decisions once the Donor has lost capacity.
A Health & Welfare LPA gives your attorney(s) power to make decisions about your daily routine (such as washing, eating, dressing), medical care, moving into a care home and life-sustaining treatment. It can only be used if you’ve lost mental capacity and are unable to make your own decisions.
To get a Health & Welfare Lasting Power of Attorney (LPA) you will need to complete a form LP1H. You will of course need to decide on who will be your attorney(s), and you will also need someone to act as your “certificate provider” (someone who knows you or a professional who can certify that you know what you’re doing, the implications of the LPA and that no one is forcing you to do it) and an independent witness. You will then need to send the signed form to the Office of the Public Guardian and pay the registration fee of £82.
As at summer 2022 the registration fee for a Lasting Poer of Attorney is £82 payable to the Office of the Public Guardian.
Enduring Power of Attorney (or EPA) were in place before the Lasting Power of Attorney (LPA) system. They (EPA) only cover decisions about finances and property (like the Property & Financial LPA). They do not cover health and welfare decisions.
Yes, Enduring Power of Attorney executed when that system was current remain valid. You can no longer make an EPA however.
An attorney under a Health & Welfare LPA can NOT:-
- Make decisions about your finances & property (unless they’re also your named attorney under a Property & Finance LPA)
- Demand specific forms of treatment on your behalf
- Refuse basic care for you
- Refuse life-sustaining treatment on your behalf, unless you’ve given them specific authority to do so in your LPA
Yes, the Health & Welfare LPA provides specific option to permit your attorney to refuse life sustaining treatment on your behalf. It must however be specifically granted to the attorney.
If the Health & Welfare LPA does not grant the attorney specific power to refuse life sustaining treatment then it will be a decision that the treating medical team will make.
No, doctors do NOT have to follow the attorney’s view. Circumstances in which this might happen may include if the medical team believe the attorney is not acting in the donor’s best interest, or if the attorney has not been given the authority to make a particular decision or if there is an Advanced Decision (also known as Living Will) which overrides the contents of the LPA.
If the donor made an Advanced Decision AFTER you were appointed as their attorney, you can’t override the decisions made in their Advanced Decision. However, if a decision needs to be made about something that’s not mentioned in the Advanced Decision, then the attorney is still able to act.
If the donor made an Advanced Decision BEFORE making an LPA, then whichever was made more recently take priority if they deal with the same decisions.
As an attorney your legal responsibility is to act in the donor’s best interest and taking reasonable care when making decisions on their behalf. You must act in accordance with the LPA and the powers/ restrictions contained within the LPA. You must help the donor make decisions where possible rather than simply making decisions on their behalf or taking control.
An attorney must always act in the best interest of the Donor – the person who made the LPA. You must help the Donor reach their own decisions first. If they are not able to then you can make the decision. You must follow any instructions or restrictions contained in the LPA. Attorneys should take into consideration the preferences that that Donor has made.
Under the health and welfare Lasting Power of Attorney Attorneys can only act once the Donor has lost capacity. When starting to use the LPA the Attorney much inform people involved in the Donor’s care, such as doctors, carers, family and friends.
If you have more questions about Health & Welfare Lasting Power of Attorney (LPA) do get in touch with our team of expert solicitors. You can email them at pcd@Qlaw.co.uk or call on 03300 020 365.
A Certificate Provider confirms (‘certifies’) to the Office of the Public Guardian (OPG) that the ‘donor’ (the person making the LPA) is
- of sound mind
- not under pressure to make the LPA; and
- fully understands the consequences of doing so
The donor can appoint:-
- lay person – a friend or colleague who is over 18, they have known for 2 years or more, and is themselves of sound mind
- professional – such as a solicitor, GP, or independent mental capacity advocate (IMCA)
Those who cannot be a Certificate Provider include:-
- relative of donor
- partner of donor
- the attorney(s)
- partner of the attorney(s)
- business partner of donor or attorney
- care home employee or owner
No the attorney(s) can NOT also be a Certificate Provider
The Certificate Provider is there to offer an independent assurance to the Office of the Public Guardian that there is no wrongdoing happening with the LPA appointment. It is a ‘safety net’ introduced to the LPA procedure – something which did not exist under the old Enduring Power of Attorney (EPA) procedures.
Yes, a friend can be a Certificate Provider as long as they are over 18, of sound mind, they have known you for 2 years or more, and they are not one of the appointed attorneys.
No, a witness simply witnesses your signature.
Yes, you need a Certificate Provider for both types of LPA – ie Health & Welfare and Property & Affairs.
Your Certificate Provider will complete/sign section 10 of the LPA.
The benefits of having a professional Certificate Provider include:-
- privacy – not having to share personal matters with a friend or colleague
- cost – you might want to do the LPA yourself and just have a solicitor do the Certificate Provider
- all in one – equally, if you have your solicitor deal with the whole LPA appointment, then acting as the Certificate Provider is something that is generally included in the price
A Deputy is a person appointed by the Court of Protection to look after someone’s affairs who has already lost capacity (and cannot therefore execute an LPA)
Yes. But, because the donor has lost capacity, the Court of Protection has to make the appointment (of the Deputy) as the donor no longer has mental capacity to appoint a Power of Attorney (LPA)
Like an LPA, there are two types of Deputy appointments:-
- Property & Affairs; and
- Health & Welfare
The forms to be filled in to become a Deputy are:-
- COP1 – application form
- COP3 – assessment of capacity
- COP4 – Deputy declaration
- COP18 – supporting information
As with an LPA, a Deputy must be over 18 and of sound mind. To be a Property & Affairs Deputy, you must demonstrate to the Court of Protection that you are able and willing to deal with the persons finances.
The Court of Protection can also appoint a professional to act as Deputy. This might be a solicitor, accountant, or member of a local authority.
These are approved organisations such as solicitors practices where nobody else is available (eg family, friend, or known professionals).
If there is more than one Deputy, they must be appointed either:-
- JOINTLY – meaning has to be done together
- JOINT & SEVERAL – meaning they can act together OR independently
There is often no need for an actual court hearing (unless things are unsual). The fees are:-
- £371 – application fee
- £494 – Court Hearing fee (if one is needed)
- £100 – new Deputy fee (not payable if the Deputy is registered as a Deputy for someone else
There are also annual fees payable:-
- £320 – general supervision
- £35 – minimal supervision (where assets are less than £21,000)
Yes. A Deputy must report to the Court of Protection each year in a specified format (hence the annual fees payable).
Yes – there is a simple process to be followed allowing a Deputy to resign. A Deputy must however ensure that the application to stop acting has been granting before they stop their duties as a Deputy.
You may not wish to burden a family member or friend with the considerable time and responsibility it takes to be an attorney under an LPA. Also, you will have the comfort of knowing that your affairs are in the hands of an expert, who will be regulated and therefore you and your affairs protected.
Yes, you solicitor can act as your attorney. You should check that they have suitable professional expertise to deal with your affairs should the need arise.
Yes, if your solicitor is acting in a professional capacity looking after your affairs, then they are entitled to charge their usual fees for those professional services. If you intend to appoint your solicitor as attorney, they should explain all of this to you at the time the LPA is made. They will also likely place a specific clause in the LPA confirming that you have agreed that they should be paid.
Yes, as with any LPA appointment, you can include restrictions and instructions for your solicitor attorney just as you can any other attorney.
No. Any attorney is not permitted to also be the Certificate Provider (as is the case for all LPA appointments – not just those in favour of a professional).
Contact
Whichever of our expert solicitors you need to talk to, we’ve made it as easy as we can to be available to you. So whether you need to speak to your conveyancing solicitor, or your wills and probate solicitor – get in touch with QLAW today!
(Estate Planning Team)
Skinner House, 38-40 Bell Street,
Reigate, RH2 7BA