A power of attorney is a legal document by which you give another person or persons (the attorney/attorneys) authority to make certain decisions on your behalf.
Types of LPAs
There are two types of LPA:
- A Financial Decisions (Property and Financial Affairs) LPA, which allows your attorney authority to deal with your property and finances, as you specify
- A Health and Care Decisions (Health and Welfare) LPA, which allows your attorney to make welfare and health care decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment
As with any power of attorney, it is an important document and you should think carefully about who to appoint. They must be trustworthy and have appropriate skills to make the proposed decisions. Please see our page Lasting Power of Attorney – Acting as an Attorney. This should be a helpful guide to those making an LPA and those appointed as an attorney.
If you appoint more than one attorney, you can appoint them to always act together (jointly) or together or separately (jointly and severally). You may even appoint them to act jointly for some things and jointly and severally for others, although this should only be done with advice, as it can cause problems when using the power.
You may also choose to appoint a successor to your attorney, in case the original attorney/attorneys die or otherwise cannot act for you.
When can the Attorney act?
The attorney/attorneys will only be able to act when the LPA has been signed by you and your attorney/attorneys, certified by a person (‘the Certificate Provider’) who confirms that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. We often act as the Certificate Provider. The LPA must then be registered with the Office of the Public Guardian before it can be used. After registration the financial LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision, in accordance with your wishes. The health and welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
Existing Enduring Powers of Attorney (EPAs)
Any Enduring Power of Attorney, validly made before 1st October 2007, will continue to be valid but only in respect of your property and financial affairs. For this reason even where clients have an existing EPA we recommend that they make and register a Health and Welfare LPA because it deals with very different matters. Some clients are also advised to make and register a property and financial affairs LPA as the document can be used straight away once it has been registered. This avoids what may be a difficult of a couple of months waiting for an EPA to be registered, as an EPA is only registered when someone has become or is becoming mentally incapable. The registration delay with an EPA can be at exactly the time the attorneys most need to act.
What happens if you have not made an LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person (a Deputy) to make decisions on your behalf. This is both costly, time consuming and can be very distressing for those closest to you.
Many care and treatment decisions can be made on your behalf without the need for a court application, but there can be delay and uncertainty and potential disputes. These can be avoided by appointing attorney/attorneys to make these decisions for you if you lose mental capacity. If you have family members or others close to you who understand what you would wish to happen if you were unable to do so yourself we urge you to take advantage of the opportunity given by the LPA regime.
We make the process of appointing attorneys very straightforward and usually the work is done for a fixed fee. A registration fee of £110 is payable separately to the Office of the Public Guardian (sometimes an exemption or fee reduction may apply). Making Lasting Powers of Attorney is money very well spent. Please contact us for more information and read the page of our website where we explain how we help in more detail and give some examples.