LASTING POWERS OF ATTORNEY (LPA)
What is an LPA?
There are two types:
- One type deals with property and affairs, which gives your attorney authority to deal with your property and finances
- The second type concerns health and welfare, which allows your attorney to make health and welfare 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.
What happens if you don’t have a LPA?
If you lack mental capacity it will be necessary for an application to the Court of Protection for an appropriate order, such as the appointment of a deputy to make decisions on your behalf. This may cause delay and expense. An enduring power of attorney made before the 1st October 2007 will remain valid providing it was prepared correctly.
How do you make an LPA?
There are separate forms for a property and affairs LPA and for a personal welfare LPA. The forms are not difficult in themselves to complete, but they will require a lot of thought and explanation. They are completed by the “donor”. The donor is the person who gives authority to the “attorney” to handle their affairs. Part A contains details about the donor and the attorney and Part B contains a “Certificate Provider’s Statement”. Section C is completed by the attorney in which they set out their personal details, confirm that they have read the prescribed information and understand their duties under the LPA.
What does a donor need to consider if they are planning to complete a lasting power of attorney?
- Choice of attorney/s
- How do they want them to operate in their role as attorney?
- Do they want to appoint replacement attorneys, and if so, when?
- Do they wish to place any restrictions and/or conditions on the attorneys?
- Do they want to give attorneys guidance?
- Do they want your attorneys to be paid?
- Who do they want to notify about the registration of the power?
- Who will be the certificate provider?
- Who can be the certificate provider?
Who should be an attorney?
You can have more than one attorney. They must be trustworthy, competent and reliable and possess skills and ability to carry out the necessary tasks. Attorneys can act together and independently.
Anyone asked to be an attorney should consider whether they have the skills and the ability to act and whether they wish to do so, bearing in mind the duties and responsibilities imposed on them.
Who is a certificate provider?
This is to safeguard the donor because the certificate provider confirms that:
- The donor understands the purpose of the LPA and the scope of the authority given under it;
- That no fraud or undue pressure has been used to induce the donor to make the LPA;
- There is nothing else preventing the LPA being created
Who can be certificate providers?
The law limits certificate providers to be:
- A person appointed by the donor who on account of his or her professional skills and expertise reasonably consider that they are competent to make the judgements necessary to act for the donor. For example, a solicitor, doctor or a registered social worker.
- Someone chosen by the donor who has known him personally for at least 2 years immediately before the date the LPA is signed
Who cannot be a certificate provider?
- A member of the donor’s or attorney’s family
- A business partner or paid employee of the donor or attorney
- An attorney appointed under the LPA or an EPA made by the donor
- An owner or director or employee of a care home in which the donor or a family member lives
When must you register an LPA?
An LPA cannot be used unless and until it is registered with the Office of the Public Guardian (OPG). A copy of the LPA must accompany the application to the OPG. On receipt the OPG sends notice of the application to the persons listed by the donor in part A of their LPA. The recipient has up to 5 weeks to object to registration and gives the grounds for objection. Typical objections are that the donor lacked the capacity to make the LPA or the attorney is bankrupt.