Lasting Power of Attorney

Without a Lasting Power of Attorney, there is a risk that, should you lose the capacity to make decisions for yourself, someone who may/may not be your choice, will need to be appointed to act in a similar fashion to appointing an Attorney/s as your Deputy/s.

However, you will have no say in who is appointed and the Court of Protection (COP) will make that decision based on whoever applies. Not only is the application more cumbersome, requiring various reports and forms relating to the individual who has lost capacity, as well as the Deputy/s own financial status, but also it is more time-consuming and significantly more costly.

Further, there is an ongoing financial cost for annual insurance and supervision fees to the COP, lest the power is incorrectly used, ongoing costs for every order sought from the COP, such as should a property need to be sold or investments changed, and ongoing requirements to act only as ordered by the COP.

The process is much more demanding and time-consuming and may end up with the person or people least favoured and least trusted by the individual acting on their behalf.
LPAs are insurance policies that no one hopes to cash in. However, if and when needed, these can provide the necessary authority for financial and health matters to continue to run smoothly for any donor who has lost the ability to make such decisions for themselves.

Do you need a solicitor?

Strictly a solicitor or specialist is not needed to prepare the paperwork as it can all be done online. However, they will help you think through your needs and circumstances and tailor them specifically to meet those needs. It is not a simple tick-box exercise. Failure to understand the nuances of any requirements can lead to the LPA being found to be at worst defective and at best, unworkable.

A useful starting point to find a suitably qualified solicitor to help you run through the requirements and process of making LPAs is to look for someone with the Solicitors for the Elderly (SFE) credentials.

This may or may not be the same person as your probate solicitor. It is never too young or soon to consider LPAs. This is especially important as it can take such a long time to register any LPA.

6. When everything is drafted then there is a strict order in which all parts of the form (there are 3 separate parts) are signed and completed by first the donor, next the certificate provider (the person confirming that they know the person giving the authority AND who themselves know and understand the mental capacity requirements to complete the document AND are satisfied that the donor is mentally fit and able to make such appointments and finally signed by the Attorney/s. Each part must be signed and dated in the right order and witnessed where needed. Any failure to properly follow the order and complete all parts of the form properly will cause it to be rejected and a whole new application will need to be submitted and paid for.

7. Once the paperwork has been correctly signed it needs to be sent off for registration at the Office of the Public Guardian (OPG) and a fee is generally payable, unless exempt or a reduced fee is available, in which case supporting evidence is needed. The full fee is currently £82 per power. The OPG will then notify all parties who are notifiable ( the donor and the Attorney/s together with anyone else the donor has indicated on the form should be notified)that the application for registration has been made and will then wait for the statutory period. Currently, there are significant delays and this process is taking 20 weeks!

8. If any objection to registration is received then this will need to be investigated by the OPG before the registration can be completed and this will cause further delay.

9. Once registered the original LPA should be released back to the donor. This should then be copied and certified by the donor or a solicitor using the required language, and the original stored safely with any certified power/s being lodged where needed. In the case of a Financial LPA this might be the bank, building society, IFA or LIfe assurance companies etc. together with ID for the Attorney/s so they can work with these institutions to access and administer funds in place of the donor as and when necessary. In the case of a Health and Welfare LPA, a copy should be lodged with the GP and any Social worker who may be working with the donor.

10. When the donor dies or, should the donor decide to cancel the power at any time, and/or appoint new attorney/s, the original LPA/s must be returned to the OPG for cancellation, with the death certificate or the deed of revocation as appropriate. All Attorney/s should also be notified as they no longer have the power to act. Anyone who holds a certified power should be notified to return their copies for destruction. No power must be used once the donor has died as it is only valid during the lifetime of the donor. No power can be used once it has been revoked. The scope for failure to follow all the steps incorrectly is huge and often a simple mistake will not only cause rejection of the application to register but will forfeit the registration fee and also delay the registration and sometimes even the ability of the donor to make the power if their capacity deteriorates between times.