The Lasting Power of Attorney was introduced by The Mental Capacity Act 2005 and came into effect on the 1st October 2007.
It replaces the Enduring Power of Attorney although EPA’s made prior to the 1st October 2007 will continue to be valid.
You may make two types of LPA – the Property and affairs LPA and the Welfare LPA. As the name suggests, the Property and Affairs LPA deals with financial matters whereas the Welfare LPA covers personal and healthcare decisions.
Choice of Attorney
The person making the LPA (the Donor) should appoint an Attorney they trust and in whom they have complete confidence. The Attorney must be over 18 and must not be an un-discharged or interim bankrupt person. More than one Attorney can be appointed to act either together, independently or together in respect of some matters and independently in respect of others. If the LPA is silent on how two or more Attorneys are to act they must act together. Under LPA’s it is possible for the person making the LPA to appoint a replacement Attorney.
Role of Attorney
An Attorney’s role to make all the decisions (subject to any restrictions or conditions contained in the LPA) that the Donor would have made himself and in reaching these decisions the Attorney must comply with The Mental Capacity Act 2005 and the Code of Practice.
Under a Property and Affairs LPA the Attorney will commonly be able to pay bills and expenses, collect income and benefits, manage Bank and Building Society Accounts, buy and sell property, complete and submit Tax Returns and make gifts within the statutory limits.
Under a Welfare LPA the Attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment and may even be able to consent to or refuse life sustaining treatment on behalf of the person that has made the LPA. The Attorney may also be able to decide whether the Donor remains in his own home or moves into residential or nursing care and also more day to day decisions such as the Donor’s diet, dress or daily routine. LPA’s can be restricted or contain conditions limiting the Attorney’s authority. The Donor can also, if he wishes, include guidance for the Attorney in the LPA. This guidance is not legally binding but could be invaluable to the Attorney.
The Certificate Provider
Not only must LPA’s be signed by the Donor and Attorneys and witnessed, a Certificate must also be given by a third party, the “Certificate Provider”.
A Certificate Provider is an independent person chosen by the Donor to complete a Certificate contained in the LPA to confirm that in his or her opinion the Donor:-
· understands the purpose and content of the LPA;
· understands the extent of the powers he is giving to the Attorney;
· is not being pressurised, tricked or placed under duress by a third party to make the LPA; and
· that there is nothing else that would prevent the LPA being created.
The Certificate is vital and without it the LPA is invalid and cannot be registered.
The Certificate Provider can either be someone who knows the Donor personally and has done so for at least two years or a person with the relevant professional skills and expertise to certify the LPA eg. a Solicitor, Barrister, Doctor or Social Worker.
Registering the LPA
An LPA, whether it is a Property and Affairs LPA or a Welfare LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. The registration fee is £150 and the registration process is likely to take between 6 and 8 weeks.
Once registered, a Property and Affairs LPA can be used immediately but a Welfare LPA can only be used once it is registered and the Donor has lost his mental capacity to make decisions.
When making the LPA the Donor can nominate up to 5 people to be notified of the application to register. Those notified will have an opportunity to object to registration if they have concerns for example regarding the integrity of the Attorney. It is not a requirement that persons are nominated but it is advisable.
A registered LPA will be added to the OPG database and searches can be made by third parties to see whether an LPA is in existence.
Revoking an LPA
An LPA can be revoked by the Donor at any time provided he has mental capacity. The Attorney can also disclaim the appointment. There are also circumstances when an LPA will be revoked. These are:-
- when the sole Attorney dies or is made bankrupt. If two or more Attorneys are appointed, the appointment of the surviving or non bankrupt Attorney will continue;
- when the Donor dies;
- when the Donor is made bankrupt (NB this rule does not apply to a Welfare LPA);
- when the Attorney is a spouse or civil partner and the marriage ends in divorce or the civil partnership is dissolved. The LPA may, however, specify that the appointment continues notwithstanding such divorce or dissolution.
However, a decision to give someone authority to manage your financial affairs is not one that should be entered into lightly.
It is therefore advisable to consult a Solicitor who is a Registered Trust and Estate Practitioner with considerable experience of dealing with these types of matters if you are considering granting a Lasting Power of Attorney.
If you wish to ensure that your affairs are in order and that your family do not encounter any difficulties in dealing with your affairs do not hesitate to contact Paul Finn or Philip Dart on 01288 356256 or send an email to email@example.com . Both Paul and Philip are both Solicitors of 25 years experience who are Registered Trusts and Estate Practitioners and have considerable expertise in this area of the law.