Latest NHS figures show over TWO MILLION people lack capacity to make decisions due to mental illnesses, result of car accident, Dementia and a variety of other reasons.
An Ordinary Power of Attorney would be no help for you at this time, as when you lose Mental Capacity any Ordinary Power of Attorney becomes void (for more information on Ordinary Powers of Attorney click here).
What you need to do is make a Lasting Power of Attorney as soon as possible to insure you and your family’s well being. Without one it can result in large Legal Fees, Complex Legal Proceedings and a great deal stress and great emotional strain on your family.
What if I don’t have a Lasting Power of Attorney?
If you lose mental capacity at some point – for whatever reason – if you haven’t completed an Lasting Power of Attorney, other people may need to apply to the Court of Protection to be able to make any decisions on your behalf. This can be costly, and can be demanding and stressful for your relatives, friends and carers.
Watch the video below by the BBC which explains the risks a bit more and scroll down for our FAQ Section
What is an Lasting Power of Attorney?
Can I amend the Lasting Power of Attoroney after execution?
A Lasting Power of Attorney once executed cannot be amended. However if there is an issue in Part B or C. Then the relevant part can be resigned by the parties provided that it is done in the prescribed order (B then C. So if B is redone then so does C).
However if there is an issue with Part A the whole form will have to be redone as the OPG can not rectify mistakes.
Have a look at common completion errors and solutions offered by the Office of the Public Guardian.
The people involved in a Lasting Power of Attorney
The person that grants the Lasting Power of Attorney is known as the Donor and the person/people they grant the power to are known as Attorney(s). There is then certain ‘Named People’ who are notified when the Lasting Power of Attorney is to be registered and lastly the Certificate Provider(s)
How does a Lasting Power of Attorney work?
You (the Donor) have to be over 18 and have ‘mental capacity’ to make a Lasting Power of Attorney. So it is recommend that you make these documents at the same time as your Will, or generally as soon as possible.
Once the documents are completed, you can store them until you need to register them. Or you may opt to store them with your Wills using SafeStor or ClientCare services where available.
Types of Lasting Power of Attorney
There are two types of Lasting Power of Attorney, “Health and Welfare” and“Property and Financial Affairs”.
What is covered by the Health and Welfare Lasting Power of Attorney?
The Health and Welfare Lasting Power of Attorney covers decisions such as:
- Deciding where the donor is to live.
- Deciding what contact, if any, the donor is to have with certain other people.
- The Donor’s day-to-day care, including diet and clothing.
- Assessments for and provision of community care services.
- Access to personal information about the donor.
- Refusing life-sustaining treatment
The Attorney(s) can act only if the Lasting Power of Attorney is registered with the Office of the Public Guardian (OPG) and if the Donor has lost mental capacity.
What is covered by the Property and Financial Affairs Lasting Power of Attorney?
The Property and Financial Affairs Lasting Power of Attorney covers decisions such as:
- Buying or selling property.
- Opening, closing or operating any bank, building society or other accounts.
- Claiming, receiving and using welfare benefits on the donor’s behalf.
- Dealing with the Donor’s tax affairs.
- Complying with a contract on the Donor’s behalf.
- Paying the Donor’s debts.
- Conducting legal proceedings on the Donor’s behalf.
- Applying for any entitlement to funding for NHS care and community care services.
This Lasting Power of Attorney can have effect even when the Donor has not lost mental capacity (subject to registration), so the Donor can make decisions about certain matters and the Attorney(s) can make decisions on more complex ones if the Donor wishes. Otherwise it can be just registered when the Donor loses his or her mental capacity or the Attorney(s) reasonably believes this to be the case.
What are the benefits of an Lasting Power of Attorney?
- An Lasting Power of Attorney allows you to plan in advance.
- The decisions you want to be made on your behalf if/ when you lose capacity to make them yourself.
- The people you want to make these decisions
- How you want the people to make these decisions.
Not having an Lasting Power of Attorney can result in:
- Your assets being frozen while the Court of Protection decides who should manage your affairs.
- The court appoints a “Deputy”; this person will be appointed to take over your affairs. The Deputy will not be your Husband, Wife or other family member.
- Deputies have limited powers and are supervised by the Office of the Public Guardian (OPG) who charge an annual fee. Professional Deputies also charge.
- Those who help you “unofficially” may be breaking the law and subject to prosecution.
- Contrary to popular belief your Husband or Wife cannot take over your affairs automatically.
- The process without a Lasting Power of Attorney can be very slow and very expensive.
Having a Lasting Power of Attorney is a safe way of maintaining control over decisions made for you because:
- It has to be registered with the OPG before it can be used (if someone else tries to register it you – and your Attorney(s) – will be able to make any objections).
- You choose someone to provide a ‘certificate’ confirming that you understand the significance and purpose of the Lasting Power of Attorney.
- You can choose ‘Named Persons’ to be told about your Lasting Power of Attorney when it is registered (so that they have an opportunity to raise concerns).
- Your signature and the signatures of your chosen Attorney(s) must be witnessed.
- From a legal perspective, your Attorney(s) must follow the Code of Practice of the Mental Capacity Act 2005 – if they don’t always act in your best interests the OPG can step in, and your Attorney(s) may be held accountable.
What if I don’t have a Lasting Power of Attorney?
If you lose mental capacity at some point – for whatever reason – if you haven’t completed an Lasting Power of Attorney, other people may need to apply to the Court of Protection to be able to make any decisions on your behalf. This can be costly, and can be demanding and stressful for your relatives, and friends and can take some time.
What if I already have an Enduring Power of Attorney (EPA)?
The old Enduring Power of Attorney’s generally only cover the person’s financial affairs while the scope of an Lasting Power of Attorney may be greater. However each person’s circumstances are unique.
Therefore it is best to talk to a Solicitor or Will writer to see if switching to a Lasting Power of Attorney will be beneficial for you.
The following table details the main differences between the old Enduring Power of Attorney and the new Lasting Power of Attorney.
The new Lasting Power of Attorney is far more comprehensive and has far more safeguards built in to protect you.
|
ENDURING Power of Attorney (EPA) |
LASTING Power of Attorney (LPA) |
Making an EPAAn EPA
|
Making an LPAAn LPA
|
Types of EPAThere is only ONE type of EPA:
There is therefore only one type of EPA document. |
Types of LPAThere are TWO types of LPA:
There are therefore TWO types of LPA document: one separate document for each type of LPA. |
| If all Attorneys are unable to Act– or if you appoint your Attorneys to act ‘Jointly’ and just one of them is unable to act -The EPA ceases immediately. | If all Attorneys are unable to ActYou can appoint Replacement Attorneys when you create the LPA – ensuring that the LPA continues to be valid. |
| Decisions the Attorney(s) can makeUnless you put limitations on the EPA, the Attorney(s) can make exactly the same types of decision about your property and financial affairs as you can when you have the mental capacity to do so. But the Attorney(s) cannot make decisions about your personal welfare. | Decisions the Attorney(s) can makeDepending on the type of LPA you as a donor make and any limitations you include, your Attorney(s) can make decisions about your:
Note that the two options above are catered for by both separate LPA documents: ’LPA – Property and Affairs’ and ’LPA – Personal Welfare’ mentioned in the ‘Types of LPA’ section above. |
| When the instrument comes into operationAn EPA comes into operation as soon as it has been completed and signed by you, your Attorney and the witnesses, unless you put in a limitation to say that the EPA will not come in to operation until you lose mental capacity or that it will start from a future specified date.If you lose mental capacity in the future, your EPA will remain legally effective as long as your Attorney(s) registers it. | When the instrument comes into operationYour Attorney(s) cannot act under an LPA unless it is registered with the Public Guardian.The LPA can be registered with the Public Guardian at any time either before you as the donor lose the mental capacity to make decisions for yourself or when your attorney(s) have reason to believe that this has happened.The Attorney(s) you have appointed to make personal welfare decisions can only use this power once the LPA has been registered and provided that you cannot make the required decision for yourself. |
| The duty of the Attorney(s)With an EPA your Attorney(s) have a duty to apply to the Court of Protection to register the EPA if they have reason to believe that you have lost or are losing the mental capacity to make the necessary decisions for yourself. Under an EPA your Attorney(s) have only a common law duty to act in your best interests. | The duty of the Attorney(s)Your Attorney(s) under an LPA have a statutory duty to act in your best interests.The duties of your Attorney(s) are also set out in the Mental Capacity Act Code of Practice and they must be aware of this and follow the guidance provided by the Code. |
| The donor’s ability to make decisionsUntil your EPA is registered, both you and Attorney(s)(s) have equal authority to make decisions about your property and financial affairs.If the EPA is registered, in theory you can still make decisions about your property and financial affairs, if you are capable of making them at the time. | The donor’s ability to make decisionsAs the donor, you can carry on making decisions, provided you have the capacity to do so.The Attorney(s) can only make personal welfare decisions that the donor is incapable of making, or which they reasonably believe the donor is incapable of making, at the time (Note: ‘LPA – Personal Welfare’ only). |
Registering the powerIt is your Attorney’s duty to apply to the Court of Protection to register your EPA when they have reason to believe that you have lost or are losing the mental capacity to make the necessary decisions for yourself.Before applying to the Court, the Attorneys must give written notice of the application to:
Any of those who receive notice of the application to register can object to the registration. |
Registering the powerEither you as donor or your Attorney(s) can apply to the Public Guardian to register your LPA. The application can be made at any time after the LPA has been executed (i.e. signed and witnessed).Before applying to register the LPA, whoever is doing it must notify the persons named by you as the donor as being entitled to receive notification of the application.The Public Guardian will give notice that the application has been received to
Your relatives will not be automatically notified of the application to register the LPA unless you have named them as being persons who should be given notice. As well as your Attorney(s) and the persons you have said should be notified, you as the donor can also object to the LPA being registered. |
| Revoking (cancelling) the powerAs long as you have the mental capacity to do so, as the donor you can revoke or cancel an unregistered EPA at any time without the need to make an application to the Court of ProtectionThe Court of Protection must confirm any revocation or cancellation of a registered EPA. Before such a decision is made, as the donor you will need to satisfy the Court that you understand who the attorney(s) are and the powers you have given them. You will also need to show the Court that you understand the effect that cancellation will have and why the EPA needs to be cancelled.An EPA registered or unregistered is also revoked if you or the attorney(s) are made bankrupt. | Revoking (cancelling) the powerAs the donor you can revoke or cancel your LPA as long as you have the mental capacity to do so. If there is any dispute about whether your LPA has been cancelled or ended, the Court of Protection has the authority to make a decision.If your attorney is your spouse or civil partner, the dissolution or annulment of a marriage or a civil partnership will end their appointment or revoke the power, unless you have specifically stated in your LPA that this is not to happen.An ‘LPA – Property and Affairs’ is revoked if you or the attorney(s) are made bankrupt, but bankruptcy does not terminate an ‘LPA – Personal Welfare’. |
Acknowledgement: Much of the information on this page has been based on a short document produced by the Office of the Public Guardian (Crown copyrighted and hence “may be reproduced free of charge in any format or medium provided it is reproduced accurately and not used in a misleading context”.)
Can I include Conditions and Restrictions in my Lasting Power of Attorney?
You can add conditions and restrictions in your Lasting Power of Attorney stating that your Attorney(s) must act in a certain way or cannot deal with a certain type of property etc. (such as your Investment Portfolio if you have appointed someone else to do this.)
However this is not recommended as drafting the clauses can be difficult to get the intended effect or at the worst case scenario the clause can be powerless and invalidate the Lasting Power of Attorney.
It may be an easier option to leave “guidance” to your Attorney(s).Therefore it is recommended that you have a discussion with your Consultant first if you wish to tailor your Lasting Power of Attorney.
Who is an Attorney and who should I appoint?
An Attorney or group of Attorneys appointed by you in the Lasting Power of Attorney will have the power to make decisions on your behalf such as the ones mentioned above. So you should only appoint someone you trust 100% and who knows what your wishes are.
Your Attorney has to be 18+ and in the case of the Property and Financial Affairs Lasting Power of Attorney cannot be bankrupt or have been declared bankrupt before. If they are declared bankrupt in the future they cannot act as your Attorney and may result in bringing the Lasting Power of Attorney to an end.
You can appoint more than one Attorney and Replacement Attorneys to act for you. They can act:
- Jointly
- Jointly and Severally
- Jointly in some decisions and Jointly and Severally in other decisions.
If they are to act Jointly, all Attorneys must agree on a decision and if one cannot act (for reasons such as mental illness) the Lasting Power of Attorney becomes invalid. Furthermore if an Attorney dies, unless a Replacement Attorney is appointed the Lasting Power of Attorney again becomes invalid.
If an Attorney is your Spouse or Partner dissolution or annulment will also cause them to cease being an Attorney and result in the Lasting Power of Attorney becoming invalid.
If they can act Jointly and Severally, a death, divorce/dissolution or inability of one Attorney would not invalidate the Lasting Power of Attorney.
If they have to act Jointly in some decisions then as above if one Attorney cannot act and there is no replacement Attorney the Lasting Power of Attorney would be invalidated.
In the second and third instance when the Attorneys have the power to act independently also, the death, incapacity or divorce/dissolution of one would not affect the Lasting Power of Attorney.
Do the Attorneys get paid?
An Attorney is entitles to out-of-pocket expenses if they did work solely for the Donor. They can however only receive a fee for their work if it is indicated on the Lasting Power of Attorney form by the Donor.
Out of pocket expense can include Professional Fees also such as for solicitors and accountant.
Please keep in mind though all expenses made on behalf of the Donor should be accounted for and records kept. However it is not necessary to use an accountant for this.
What if my Attorney dies or cannot act?
After registration: if you have one Attorney and no Replacement Attorneys your Lasting Power of Attorney becomes unusable. If you have a replacement, they take over.
Before registration: if you have capacity you can make a new Lasting Power of Attorney and choose a new Attorney.
What if I don’t agree with my Attorneys decision?
If you still have capacity you are unhappy with your Attorneys actions you may revoke the Lasting Power of Attorney.
If your Attorney makes a decision when they believe that you lack the capacity to do so yourself and
make it in what they believe to be your best interests; you will need to discuss your concerns with them in the first instance.
If you still feel unhappy with their decision you can contact the OPG and advise them that you believe your Attorney(s) should not be acting or is not acting in your best interests and they will investigate.
Because of the complications that may occur, we suggest you only appoint people who you trust completely to act as your Attorney(s)
Who can I use as a Witness?
For the Donor you can use anyone present at the time of signing as a Witness as long as they are over 18. However this person cannot be an Attorneyor a Replacement Attorney appointed in the Lasting Power of Attorney but can be the Certificate Provider.
For the Attorney the person witnessing again has to be over 18 however here it can also be a different Attorney as well as the Certificate Provider
Who do I select to Notify on my Lasting Power of Attorney?
This is a safeguard within the Lasting Power of Attorney, upon application to register the Lasting Power of Attorney, these “Named Persons” will be notified and if they have any concerns they can be raised (such as pressure to register etc.).
It is suggested that you pick five people to notify so that if in the future one or more than one cannot be contacted for whatever reason this safeguard is still in place.
You can pick family members or friends as well as health or social care worker who knows you. You can also inform these individuals who the Attorneys are. You cannot however pick an Attorney or Replacement Attorney to be a ‘Named Person’ here.
When picking the individuals you should explain the Lasting Power of Attorney to them and the fact that upon attempted registration they can raise concerns if they feel that is the case.
Due to the nature of this safeguard you have to keep up to date address and contact details of the Named Persons with the Lasting Power of Attorney on a Separate piece of paper. You should NOT alter the Lasting Power of Attorney once it has been signed.
If an amendment is needed before the Lasting Power of Attorney has been signed please inform us.
If you do not wish to notify anyone when the application for registration of the Lasting Power of Attorney is put forward you will need to have two Certificate Providers as detailed below to sign the Lasting Power of Attorney.
Who is a Certificate Provider and why do I need one?
The role of the Certificate Provider is to discuss the Lasting Power of Attorney with the Donor and what the result of such a document could be. They have to be certain that the Donor fully understands the purpose of the document, its power, ensure they are not under any duress to create such a document and have the mental capacity to make such a document.
The Certificate Provider then signs the relevant part on the Lasting Power of Attorney confirming the above.
A Certificate Provider falls into two categories:
1) Someone you have known personally for a period of at least 2 years.
2) A professional who has the relevant professional skills and expertise, such as a Health Practioner, GP, Solicitor, Barrister etc.
They cannot be:
- a family member of either the Donor or any of the Attorneys;
- a business partner or employee of the Donor or any of the Attorneys
- The Owner, Director, Manager or employee of a care home where the Donor or any of his relatives live.
When Should I register?
Your Attorney’s) can only act for you once the Lasting Power of Attorney is registered.
Either the Donor (while he has Mental Capacity) or the Attorney(s) (if they feel the Donor has no longer got the mental capacity) have to apply to the Office of the Public Guardian (OPG) to register the Lasting Power of Attorney. Though before doing this they must notify the ‘Named Persons’ indicated on the Lasting Power of Attorney.
How much does Registering my Lasting Power of Attorney Cost?
The application fee for registering each Lasting Power of Attorney is £110, however you might be able to apply for either fee remission or exemption depending on financial circumstances.
Exemption is awarded if the donor is on certain means-tested benefits and remission (50% reduction of the fee) is granted to those who have a gross annual income of less than £12,000.
The form LPA120 would need to be completed in order to apply for either.
If your form is returned because it’s invalid, you can apply again within 3 months for £55.
Why should I not delay the registration?
If you keep your Lasting Power of Attorney until you lose capacity, it may, by that time, have become out-of-date, or contain errors. When an application is then made to register your Lasting Power of Attorney, it will be rejected, and you will not be able to make another one.
Registration takes at least 6 weeks. If you need your Lasting Power of Attorney to be used urgently, it cannot be used during the 6 week period. If your attorney needs to make decisions urgently, they will have to apply for a Court order, or if the donor still has capacity a Ordinary Power of Attorney may be used in the interim period.
You do not need to pay a fee until your Lasting Power of Attorney is registered (please note you may be eligible for a fee exemption depending on your circumstances. Please ask our Consultant for more details)
You do not need to inform the OPG very time there is a change of address (or name) of any of the people in your Lasting Power of Attorney before registration
We have Joint Accounts do we still need a Lasting Power of Attorney?
Even if you have Joint Accounts with your Bank or Building society you will need to create a Lasting Power of Attorney.
The British Bankers Association states in their Guidance:
What happens if the other joint-account holder becomes mentally incapable?
If the other joint-account holder becomes mentally incapable, the bank or building society must get an order from the Court of Protection (in England and Wales), which protects the rights of mentally incapacitated people, before they can let you use the account.
The easiest way and a method which can be deployed early on to prevent any issues is creating and possibly registering a Lasting Power of Attorney for Financial Affairs early to avoid any issues in the future.
Does an Attorney have to make a decision where the donor is capable?
In the case of a Lasting Power of Attorney Health and Welfare, these only come into effect when donor has lost capacity. However with a Property and Financial Affairs Lasting Power of Attorney. It is possible to have the Attorneys make some decisions while the donor still has capacity.
This is to allow the donor to retain control over simple decisions while allowing the Attorney(s) to deal with more complex matter such a property transactions etc.
The scope of the allowed decisions at this time should be discussed with a professional so they can be drafted accurately in the Lasting Power of Attorney itself and can be refereed to when needed.
Lasting Power of Attorney Fee Postponement
Unfortunately as off the 1st October 2011 it is no longer possible to consider any applications with fee postponement request. The application needs to be either send with payment or remission/exemption request with evidence.
If the fee is paid, an exemption/remission can be applied for up to 6 months after the registration of the LPA, if successful the fee will be refunded.