Lasting Power of Attorney

What is a Lasting Power of Attorney?

Lasting Powers of Attorney, known as LPAs, are registered legal documents which give other/s authority to act in your best interests.

There are two types:

  1. Health and Welfare LPAs for use if you be unable to make decisions.
  2. Property and Financial Affairs LPAs should you not wish to or be unable to manage your own affairs.

Known and trusted individuals should be appointed, those who you are confident will look after your best interests and consult with you to establish your wishes wherever possible. Professionals also offer their services to act as Lasting Attorneys and also to prepare the legal paperwork needed to appoint and register powers.

Why is a Lasting Power of Attorney Important?

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.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney or EPA is similar to an LPA and was possible up until LPAs were introduced in 2007.

Both are accepted as authority for the Attorney/s to act throughout the UK.

There are significant differences in the way each works and the extent of the powers able to be given, the main ones being:

  1. Attorney/s cannot use an unregistered LPA, whereas an unregistered EPA can be used by the Attorney/s up until the donor has lost or is losing their mental capacity.
  2. An EPA could only be made to cover decisions about property and finances whereas an LPA can be made to cover health and welfare decisions as well as to cover decisions about property and finances.
  3. An EPA, when being registered due to failing or lost capacity of the donor, requires notification of a certain number of stipulated related individuals through blood or marriage, whereas to register an LPA upon creation the person making the power can choose not to notify anyone at all. The Attorney/s must always be notified of the application to register.

How do I appoint an Attorney, prepare an LPA and register it?

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.

What can I do if I am appointed as an attorney under a Lasting Power of Attorney? (or an EPA)

Your powers as an Attorney are wide as you are said to step into the shoes of the donor but any action you take but be one that is made in the best interests of the person who has made that power.

You can only act within the scope of your power/s as set out in the LPA itself. Depending on the wording you may be able to act alone, but not without the agreement and consent of the other Attorney/s, or you may have to act together with all other Attorney/s appointed.

You must also consult with the donor as far as possible to ensure you are carrying out their wishes. If they no longer have the capacity, your personal knowledge of the donor, their lifestyle and wishes will help you make such decisions. Even if you think they may not fully understand, it is still your duty to make sure you try and help the donor to understand and retain their autonomy as much as possible. Practically you should keep careful records of all decisions made, especially with regard to finances, and your rationale for making such decisions.

Spot checks can be made and should the OPG be tipped off about some strange behaviour of the donor or the attorney this can be invaluable in supporting any spending and decisions you have made.

You have to be very careful about making gifts to yourself as an attorney as well as using money to save tax unless you can prove this is absolutely what is wanted and in the best interests of the donor. If in any doubt as to how the money and finances can be spent and structured, legal advice should be sought to ensure you are acting within the scope of any power you have been given.

Lasting Power of Attorney FAQs

How long does registration for Lasting Power of Attorney take?

Currently, the waiting time to register an LPA is 20 weeks (as of November 2022).

Also, should mental capacity be fading when an LPA is made, this may delay the process or prevent the validity of the document itself. If capacity is dubious, a professional will insist upon obtaining an independent written report, confirming that the person making the LPA (the donor) has the capacity to fully understand and weigh up their options in making such a document as well as fully understanding the effect and consequences of making such a document. It will cost more and take longer to complete if a certificate of mental capacity is necessary to support the process of signing the paperwork and applying for it to be registered.

Once an LPA has been registered then to change it there must be a formal cancellation, known as revocation, and then a new LPA prepared and registered in accordance with the procedure then in place.

The revocation/s, original LPA/s and the new LPA/s will then need to be signed and sent to the OPG with the relevant fee/s. You may feel your Attorney/s are becoming too old to act; Your child/ren may now be of a suitable age/s to themselves help you with decisions, or Your Attorneys may have all died. Sadly, sometimes relationships change and you might no longer be able to trust your Attorney/s to act in your best interests.

All these are good reasons to change your Attorney/s and make new LPAS. Don’t forget to notify those Attorneys whose appointment you wish to cancel. To continue to act as an Attorney once their power has been removed and they have been notified is a fraud.

If you prepare your own LPAs online and do not use any legal assistance the only cost will be the registration fee/s which is currently £82 per LPA.

If you are eligible for a discounted or exempted fee because of your financial circumstances, it will not cost you this much. You will be asked for proof of entitlement.

If you use the services of a legal firm or other, their charges will likely vary, depending on how many LPAs are being prepared for you at the same time, and whether or not you are including any specific preference and instructions that might need drafting for your own particular circumstances. These fees will be published on any form’s website but always ask and be told of their fees before the work is started.

This should be included in their contract for services. If you are having LPAs prepared and your circumstances are not straightforward or you wish to include non-standard preferences and instructions the fees will in all likelihood need to be adjusted accordingly.

As outlined above there are two types of LPA: one covers decisions concerning property and finances and the other decisions about health and welfare.

Within the scope of each power, the donor can decide how to limit that power and/or guide the attorney/s in the exercise of that power by stipulating certain preferences and guidelines as well as instructions.

The former are things that should be kept in mind when any Attorney is making a decision, the instructions are what the Attorney/s must do in making any decisions. Careful and accurate drafting is required to ensure any such preferences and instructions are both workable and acceptable to the OPG.

If none are drafted and incorporated into the LPA, the Attorney/s are always bound by the requirement to act in the best interests of the donor and to consult with him or her as much as possible in reaching and making any decisions on their behalf.

Common reasons to have a LPA

None of us know what the future holds concerning our health and capacity to make decisions. Capacity can change overnight or can creep up on us. Anyone can and should have both types of LPA as an insurance policy: one hopes one never has need of it but it is invaluable to any individual who finds themselves in need of the help they offer.

Often when making a will a legal advisor will suggest looking at making LPAs whatever your age and stage of life.

It is impossible to tell when capacity may fail. There are many reasons for this: young onset dementia, serious illness to the brain, head injury, unanticipated consequences of surgery, etc.

It is therefore never too young to consider making LPAs. This ensures that, should anything happen, there is someone who can make decisions on your behalf, access money for you, pay bills and generally ensure the smooth running of your affairs, and if necessary make important decisions about your future care and where this might be delivered, etc.

Often people leave it until they are much older when they see themselves struggling with managing finances and making decisions for themselves. Often this might be combined with a terminal or life-limiting diagnosis or dementia.

This can lead to problems.

This might lead to a requirement of obtaining a certificate of legal capacity to make the LPA and can sometimes lead to challenges to the validity of the power. All of this causes increased delays, increased costs and increased stress. Also, if mental capacity or health is failing, due to the time delays in registering the powers and the inability to use an unregistered power, sometimes this in itself, even if there are no challenges or disagreements, can cause huge problems.

  • Some people may realise they are not very good at making decisions and seek the support of other trusted people to help them in this
  • Others know they are going to have major surgery and are likely to be out of action for some time as they recover so might need an Attorney to help them
  • Might be out of the country for an extended period and want to have others on hand to make suitable decisions and take necessary action on their behalf.

Whatever your reasons, LPAs are a really good idea provided that you know and trust the individual/s you appoint and make sure the powers given are suitable for them to act in your best interests.