Why consider an LPA?
Many people wish to plan ahead and set out in advance what they would like to happen should they become unable to make decisions for themselves in the future.
The NHS estimate that over 2,000,000 people lack the mental capacity to make decisions for themselves due to dementia, mental health difficulties, brain injuries or other illnesses that may occur even in the prime of life. This however could apply to anyone, at any age, by reason of illness, disability or mental impairment who may no longer be able to deal with even simple matters like handling a bank or building society account, claiming benefits, handling tax affairs or buying or selling a house.
If you no longer have the mental capacity to look after your own affairs and you do not have a Lasting Power of Attorney (LPA), the Court of Protection will appoint a Deputy to manage your affairs for you. There may be significant legal fees to pay, plus annual supervision fees of up to £800, application fees, doctor's certification fees, a security bond, a deputy fee and a long delay before the Deputy Order is issued. Also the Deputy may not always be aware of your personal circumstances or your personal wishes.
It is therefore always better to prepare an LPA before it is actually required and you lose the ability to do so.
What is an LPA?
The term Lasting Power of Attorney (LPA) refers to the legal document which allows an individual (referred to as a Donor) to nominate a person or people (referred to as Attorneys) to make decisions on their behalf should they reach a state where they no longer have the mental capacity to make certain decisions. Lasting Power of Attorney can be divided into two groups, one that relates to the financial well being of the Donor and one which refers to the health care and general welfare of the Donor.
Property & Financial Affairs LPA: gives your LPA attorney power to deal with your property and financial affairs. Typical tasks include collecting your pension, benefits or other income, paying your bills, dealing with your bank or building society, completing tax returns, buying & selling property, making certain gifts.
Personal Health & Welfare LPA: gives your LPA attorney powers and instructions concerning your future welfare and medical treatment. Typical tasks include arranging your meals, buying your clothes, fixing your daily routine, deciding whether its time for you to move home - maybe into residential or nursing care - giving consent to or refusing life sustaining treatment on your behalf.
You do not need to have both LPA's (Health and Welfare and Property & Finance) but best advice is to have both. You can choose to put only one of these in place. If you choose both, you can select different Attorneys if you wish. Each Lasting Power of Attorney however needs to be detailed on separate forms and registered separately.
Creating an LPA is an opportunity to put in writing your personal wishes about what you want to happen should your abilities deteriorate, whilst remaining free to continue making your own decisions for the time being.
Who should be the attorneys?
The Attorneys must be someone whom the Donor trusts and can include friends, relatives and professional advisers. The Donor can choose to select one or more Attorneys to make all the decisions on their behalf. The person must be over 18 and not a bankrupt. If you appoint more then one person as your Attorney, you can require your Attorneys to act either jointly, or jointly and severally or jointly in respect to some matters and jointly and severally with respect to others. You can appoint replacements to act if your attorney is no longer able to act for you.
Certification
LPA's must be certified by an independent third party (the certificate provider) before the attorneys can sign to accept their appointment. The certificate provider must state that in his or her opinion the Donor has mental capacity to create the LPA and is not being subjected to any pressure from any other party to enter into the LPA.
Who can provide the certificate?
There are two categories of people who can provide a certificate for the LPA.
Someone who has known the Donor personally for at least 2 years preceding the date at which the LPA certificate is signed.
Somebody on account of their professional skills and experience (e.g. a solicitor) feels reasonable competent to provide such a certificate.
Registration of the Lasting Power of Attorney
The document must be registered before it can be used a process carried out by the Office of the Public Guardian which takes approximately 12 weeks. Most people get their LPA registered ready to use in the event that they become incapacitated. This costs £82 to register although 50% remission can be applied for if the donor’s gross income is below £12,000. Exemption from the fee can be obtained if the donor receives certain means tested benefits.
Cost of LPA's
Staffordshire Wills provides a home service which is second to none.
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Single with registration documents |
Double with registration documents |
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LPA Property and Affairs |
£275 |
£500 |
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LPA Health and Welfare |
£275 |
£500 |
Note there is an extra charge on registration of £82 per LPA payable to the Office of the Public Guardian.
Questions & Answers
Q. What is a Lasting Power of Attorney?
A Lasting Power of Attorney (‘LPA’) is a legal document that enables you (‘The Donor’) to choose someone (‘The Attorney’) to make decisions on your behalf about such things as your finances, property and your personal welfare at a time in the future should you become physically or mentally incapable to deal with
those affairs.
Q. Are there different types of LPA? Yes, there are two different types:
a) Property and Affairs:- this allows your Attorney to make decisions on your behalf about your property and affairs including paying your bills, collecting your income and benefits or selling your home subject to any restrictions or conditions.
b) Personal Welfare:- this allows your Attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live.
Q. Who can be make one?
Anyone can make an LPA if they are aged 18 or over, and have mental capacity to understand the meaning and the effects of the LPA.
Q. Can I appoint more than one Attorney?
You can appoint as many Attorneys as you wish, but it is important that you consider how you are appointing them. You will need to specify whether you want to appoint your Attorneys to act jointly together which means that all your Attorneys must sign relevant documents together. This acts a safeguard, so all of your Attorneys must act in agreement. A disadvantage of this is that if one of the Attorneys cannot act or refuses to make a decision then the power fails!
You can also appoint your Attorneys to act jointly and separately. This means that they can act on their own or together. This is more flexible to allow your Attorneys to act on their own should the other Attorneys become unavailable or are unwilling to act in the future.
Q. What can my Attorneys do?
You can give as much power to your Attorneys as you like. You decide how much power they may have in relation to your affairs. You can give your Attorneys general authority to manage all your property and affairs or make all decisions regarding your personal welfare.
For a Property and Affairs LPA, this means that they could sign cheques, pay bills, open and close accounts, make gifts and or even sell your home.
If you do not wish your Attorneys to have such wide powers then you can place restrictions/conditions on them. For example you can include a condition that your Attorneys must act in a certain way or cannot act until you have become mentally incapable. Restrictions can be placed on your Attorneys preventing them from specifically making certain decisions. One example is they cannot sell your house until you become mentally incapable.
For a Personal Welfare LPA, if you do not include any conditions or restrictions, your Attorneys will be able to do anything in relation to your personal welfare. This might include deciding where your permanent place of residence should be, deciding on your care needs and consenting to treatment. Again, you can place conditions or restrictions on your Attorneys for instance they must consult a particular person before making a decision or a restriction as to what they can do.
If you want your Attorneys to have power to make a decision about life sustaining treatment, you have to expressly give your Attorneys power to make that decision. If you have not given your Attorneys power to make such decisions then the decision will be made by health professionals.
Q. What if my Attorneys are no longer able or unwilling to act?
You can appoint replacement Attorneys to make decisions on your behalf if your original Attorneys are no longer able or do not wish to make decisions on your behalf. For example, you may choose your spouse as your Attorney then choose your son/daughter as a replacement if your spouse should die or can no longer act on your behalf. You can choose as many replacements as you want. If you want to appoint a replacement Attorney, you do so at the time you make your LPA and a replacement Attorney has to sign up to taking on this role like any other Attorney.
Q. Do I have to notify anyone else that I am making an LPA?
If you want to, at the time you make your LPA you will need to decide who you would like to be notified that registration of your LPA is taking place. You can name up to five people. Once notified if the person you have chosen have concerns about the registration of your LPA then they can make representations to the Office of the Public Guardian. You can elect to notify no one!
Q. Does the LPA have to be signed by anyone else?
Yes, you must select a person to complete part of the LPA form, confirming that you understand the LPA and that you are not under any pressure to make it. This is called a Certificate Provider. This can be someone that you have known personally for at least 2 years or someone who has the relevant skills and expertise such as a Medical Professional, Solicitors, Willwriter or a registered Social Worker.
Q. When does my LPA have to be registered?
Your LPA can be registered after you have made it and cannot be used until it has been registered. The LPA is made when it has been completed and signed by all of those required to sign the forms.
Q. Can I still make decisions if my LPA is registered?
Yes, if you have the capacity to make a decision, your Attorney can act for you in your best interests and on your instruction. If you disagree with your Attorneys actions and still have the capacity to do so, you can revoke the LPA by notifying the Office of the Public Guardian.
Q. Is there a Registration Fee?
Yes, at the time that you register your LPA you will have to pay a registration fee to the Office of the Public Guardian. A separate registration fee is payable for a Property and Affairs LPA and a Personal Welfare LPA when each application for registration is made. To register one LPA the fee is £82/00. If your gross income is below £12,000 the fee is halved. Remission can be obtained if client receives certain means tested benefits
Q. How much does it cost.
Each Lasting Power of attorney costs £275 (Staffordshire Wills Price) or £500 for the two plus the registration fees.
Mental Capacity Act 2005
LPAs are governed by the Mental Capacity Act 2005 (MCA), regulations made under it and the MCA Code of Practice. Attorneys must have regard to these documents. The Code of Practice is available from www.gov.uk/opg/mca-code or from The Stationery Office.
The Mental Capacity Act 2005 states that in order to have capacity to make a LPA:
you must have all the relevant information;
you must be able to retain that information; and
you must be able to weigh it up to arrive at the decision to make the LPA.
You must also be able to understand the foreseeable consequences of making or not making the LPA or making it in different terms. For example, someone who has recently been diagnosed with a degenerative condition such as dementia should be able to understand that if an LPA is not put in place, and they subsequently lose capacity, it might be necessary for a court application to be made for a Deputy to be appointed to deal with their affairs.
Your attorneys must follow the principles of the Mental Capacity Act:
1. Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
2. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
3. Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
4. Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
5. Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictiveof your rights and freedom but still achieves the purpose.
Your attorneys must always act in your best interests. This is explained in the Application guide, part A8, and defined in the MCA Code of Practice.
