Preparing a Lasting Power of Attorney
As indicated above there are two types of LPAs and each is a separate document. You may or may not choose the same person/people to be your Attorney/s for each if you choose to do both types of power.
1. The first decision you need to make is to decide how many Attorneys you want to appoint. You can have 1-4 Attorney/s and there may be good reasons to have 2 at the very least. You also must decide if you want them always to act together or if you are happy for one to act without the other/s, or whether you want them to act together for some decisions but not for others. Any such decision needs to be clearly recorded on the form;
2. It is important to ask your proposed Attorney/s to confirm they are happy to act on your behalf in this capacity. It is an onerous responsibility and not everyone is happy to act. This is especially so if there is likely to be a challenge to that appointment by, for example, other members of the family/friends who are not appointed;
3. You can decide to appoint one or more Attorney/s to act in the first instance and then appoint replacement/s to act in the event of those first named Attorney/s themselves not being able to act;
4. Next, it is important to consider if you wish to include any preferences as to how they should act on your behalf or instructions as to how they must act. Care needs to be taken here to be very precise as anything that might be seen to be unclear or unworkable will be rejected upon registration and a whole new application (with associated costs ) will be needed;
5. Armed with this information, the paperwork can be prepared with the relevant personal information and details for each party.
Registering a Lasting Power of Attorney
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.
