Lasting Powers of Attorney
Why do I need a Lasting Power of Attorney?
No one would relish the prospect of losing their mental capacity to deal with their own affairs, Often it is a family member or friend who will start to notice when someone is starting to forget straight forward aspects of daily life. When this extends to the ability to deal with one’s finances, bills may go unpaid, leading to debts and disruption. If this starts to happen, a bank, creditor or utility company would not allow a family member or friend to have information or access to the account. It is difficult to step in and provide help without the proper authority and such authority comes in the form of a Lasting Power of Attorney (LPA). By creating an LPA when you have the mental capacity to do so, you can appoint the person you would want to be able to make decisions on your behalf so that if, in the future, you became incapable, that person can step in straight away to deal with matters for you.
What is a Lasting Power of Attorney?
There are two types of LPA, namely one dealing with property and affairs and the other dealing with personal welfare. The first type is broadly familiar from the previous Enduring Power of Attorney which existed before 1st October 2007 and is a document which an individual can execute in order for someone else to act on their behalf in connection with their financial affairs. As a LPA, it is intended to survive any mental incapacity and can continue to be used where an individual is no longer capable of dealing with their finances.
The personal welfare LPA is new and deals with the matters commonly considered in "living wills" and can include considerations such as the provision or withdrawal of lifesaving treatment. An attorney appointed to make decisions for you would be able to act in accordance with guidance you can specifically set out in your LPA as to what you would choose to happen in certain circumstances, such as the type of medical treatment received, if you were no longer capable of making such a decision for yourself. The issues which might have to be canvassed in such a power are profound and it goes without saying that the most detailed and careful consideration must be given to the drafting of such a document.
How can I create a Lasting Power of Attorney?
For both types of LPA there are set forms which must be used. They are available from the website for the Office of the Public Guardian www.publicguardian.gov.uk. The forms must be completed carefully and then signed in the presence of an independent witness. A certificate of capacity must be completed, in which it is confirmed that the person giving the LPA has the mental capacity to do so at the time it is signed. This can only be completed by certain people, but this includes solicitors such as ours who have the relevant professional skills to confirm capacity. The intended Attorneys must then also sign pages of the document before an independent witness.
Do I need to tell anyone about the Lasting Power of Attorney?
The LPA form provides for someone to be told about the LPA and your intention to register it (see below). This should be someone who knows you well but not someone who is to be appointed as an attorney or a replacement attorney. If you do not wish to tell anyone about the LPA then you will need two certificates of capacity completed.
How do I register the Lasting Power of Attorney and with whom?
Before a LPA can be used it must be registered with the Office of the Public Guardian. There is a set form to complete and a fee of £120 to pay. The people who have been notified of the application to register the LPA will have a period of five weeks to raise any objections, after which time the Office of the Public Guardian will validate the LPA and return it to the Applicant.
A cautionary note…what happens if I don’t have an LPA?
Without an LPA to deal with your finances, if you became incapable of dealing with your finances, a family member, friend or solicitor would have to apply to the Court of Protection to be appointed as your Deputy. This can be a time consuming and expensive process, in which you are unlikely to have any say as to who is controlling your affairs and during which time no action can be taken to deal with your affairs to, for example, pay bills and meets day to day expenses. Without an LPA to deal with personal welfare matters, decisions may be taken which you may not have otherwise taken yourself or an application to the Court of Protection may be required for the Court to consider your case and decide what is in your best interest.
Our Staff
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| Philippa Curran | Christine Makinson | Laura Wilson |
odonnells have long experience and expertise in the medical and legal issues arising out of mental incapacity. We can assist by preparing the LPA documents, completing the certificate of capacity and making the application to register the LPA, including notifying the named people. We also have experience of being appointed as an Attorney on behalf of our clients. Alternatively we can offer a reduced service, limited to providing a certificate of capacity.
We can offer appointments in the comfort of our offices or at home if this is more convenient and appropriate.
Information Sheets
| Title | Date |
| Some Pitfalls | 31/10/2011 |
| Thinking Ahead | 27/04/2010 |