Peter Lee (Wills and Estate Planning) Limited

Lasting Powers of Attorney – What’s it all about?

AN INTRODUCTION TO LASTING POWERS OF ATTORNEY
This is only an introduction to the subject of Lasting Powers of Attorney. It is not legal advice and if, when you have understood more of this subject, you wish to appoint an Attorney to help with your affairs, you should carefully consider all of the relevant issues, and if you are in any doubt at all, seek professional help. With the help of family or friends you may not need professional help but if you do, check on the integrity and qualifications of the adviser and what the service will cost.
So, what is it all about?
It is possible for you to authorise someone or some people to make decisions for you, in respect of your assets and/or health and welfare to provide for a situation where you become unable to make decisions yourself due to a lack of mental capacity. This is done by completing a document, called a Lasting Power of Attorney. It might be said that although made during a period when when you have mental capacity, they “last” into the mental incapacity and continue until you die or they are revoked. They can be very useful, ease practical circumstances and remove stress for you, family and friends at what can be a very difficult and emotional time.
For the sake of space I use the abbreviation “LPA” in the remainder of this note to mean “Lasting Power of Attorney” either in the singular or plural. I also assume that only one Attorney is being appointed although you can appoint more than one. If you are the person granting the LPA you are called the “Donor” and the person you appoint is called the “Attorney”. I have endeavoured to keep this introduction as short as possible but I suggest you read it twice. It is worth about 15 minutes investment of your time.
1. What does an LPA cover

There are two types of LPA:

a. One for your Property and Financial Affairs
This LPA covers your money and property. You don’t have to own your own home or have a lot of money to make this type of LPA. It can be used on your behalf, with your consent, as soon as it’s registered. It can take effect immediately or you can state that it will only be used if you don’t have mental capacity. You don’t have to have a lot of money to make this. You can also make a separate LPA for your business affairs if you want different people to make those decisions.
You can choose that your LPA will only be used if you are no longer able to make decisions. Or you can choose that it can be used while you have mental capacity because you want people to help you with your finances.
b. The other for your Health and Welfare
This LPA covers your personal welfare and health care. This type of LPA can only be used if you don’t have the mental capacity to make decisions yourself. You can use it to let your Attorney decide about your daily routine, such as what you wear and eat, moving into a care home or getting help from social services. You can also give your Attorney the power to refuse or agree to any medical treatment you may need to stay alive, if ever you are unable to make that decision. If your Attorney does not have that power, doctors would decide.
Some people make one type of LPA, while others make both. It is important to realise that no LPA is effective until it has been registered at the Office of the Public Guardian (OPG)
Remember, that as a safeguard, a health and welfare LPA can only be used when you don’t have the mental capacity to make decisions.

2. Protecting your interests
Your Attorney must always act in your best interests and follow any instructions you give him about making decisions. Those instructions can include conditions or restrictions on how the Attorney makes decisions. You can also include preferences to guide the Attorney’s decision-making in a way that reflects your beliefs and values.
Your Attorney can only make decisions that you’ve allowed them to make in your LPA. For example, if your LPA is for your property and financial affairs, your Attorney can’t make decisions about your care or where you live. If your LPA is for your health and welfare, they can’t make decisions about your money or financial affairs.
3. Safeguards
An LPA can’t be used by your Attorney until it’s been registered by the Office of the Public Guardian (OPG). Before an LPA is registered, the OPG must be sure that the LPA is legally correct, contains no errors and that people have had the opportunity to object if they have any concerns.
OPG can ask the Court of Protection to remove invalid instructions and preferences so that an LPA can be registered.
A donor who still has mental capacity can ask OPG to cancel their registered LPA if they change their mind.
The OPG protects people who don’t have the mental capacity to make decisions for themselves. If someone raises concerns about how an Attorney is acting under an LPA, the OPG will investigate or work with other organisations to address complaints.
4. Registration and Fees
It currently costs £110 to register each LPA. Some people qualify for a reduced fee of £55 or can pay no fee.
5. Before you begin
You need to make quite a few decisions when you make an LPA. You should think about these decisions in advance. It’s important to know how your LPA will work and to talk to the people you want to be involved.
Some questions to ask yourself
• Who will be your Attorney?
• How many Attorneys do you need?
• Should you have replacement Attorney? These are people who step in if original Attorney can no longer act, so they’re a way to protect your LPA.
• If you wish to appoint more than one, should they act together or individually, or a mixture of the two?
• Do you want to give your Attorney any instructions about how to make decisions?
• Do you want to state any preferences about your family, affairs, beliefs and values to guide your Attorney’s decision-making?
• You will need an independent person who is to sign your LPA to certify that you understand it and no one is forcing you to make it. This is by way of a safeguard for you. Who will that be? They are called a “Certifier” or “Certificate Provider”
• Are there any ‘people to notify’ about your LPA when it is about to be registered? These people are an optional safeguard who can raise concerns about your LPA before it can be used.
6. Health and welfare: other ways to plan
Remember that there are other ways to make your views known and help other people make decisions about your health and welfare.
An Advance Statement of your preferences and wishes
This is a written statement setting out your preferences and wishes for any care you may need in future. This isn’t legally binding but the people looking after you have to take what you say into account when they decide about your best interests.
NHS Choices website has more information about advance statements
A Care Plan
If you have a long-term health condition, you can create a written care plan with your GP, nurse or social worker that sets out ways of helping you look after yourself on a day-to-day basis.
NHS Choices website has more information about care plans. Start at http://www.nhs.uk/Pages/HomePage.aspx and search against the topic
An Advance Decision
This is a legally binding document that allows you to specify types of treatments that you don’t want, in case you aren’t able to make a decision about them in the future.
NHS Choices website has more information about advance decisions Start at http://www.nhs.uk/Pages/HomePage.aspx and search against the topic
There are certain procedural rules which apply on the registration of your LPA if you have any of these things in place.
7. SO, to remind you when an LPA can be used ………………….
Health and Welfare LPA
A health and welfare LPA takes effect only after it’s registered and if you don’t have the mental capacity to make decisions. Your Attorney cannot make decisions for you when you can make them yourself.
As part of the completion of one of these LPAs, you can add directions for how your Attorney should act. Some people explain how their mental capacity should be assessed. For example, you can include a statement that your Attorney shall only act under the power if they have obtained a written medical opinion stating that you are no longer mentally capable of managing and administering your property and financial affairs.
However, if you trust your Attorney to assess your mental capacity, you do not need to add instructions.
Property and Financial Affairs LPA
A property and financial affairs LPA usually takes effect when it’s registered. You decide whether your Attorney should act on your behalf and in which circumstances. If you don’t have mental capacity, your Attorney can act and make decisions on your behalf.
However, you can choose that your property and financial affairs LPA will take effect – and your Attorney will be able to act for you – only when you don’t have mental capacity. In this case, banks and other financial institutions will sometimes want written confirmation that you do not have mental capacity before they’ll recognise an Attorney’s authority to act under an LPA. This can cause delays but needs to be weighed in the balance amongst your considerations
Even if you still have mental capacity you may wish to appoint an Attorney if for example, it’s difficult to do things, you might want your Attorney to help you. For example, if you can’t leave the house or it’s hard to talk to your electricity supplier, you might ask your Attorney to deal with the bank or pay bills. You can also decide not to let your Attorney make certain decisions, for example, about selling your house. So you can see that granting a Property and Financial Affairs LPA can be helpful, not just if you lose mental capacity.
8. What is an Attorney?
An Attorney is a person you trust and whom you appoint under your LPA to make decisions on your behalf if and when you don’t have mental capacity.
You must have at least one Attorney. There’s no upper limit but too many Attorneys could make things difficult, as they’ll need to work together.
You should think about replacement Attorney – people who step in if one of your original Attorneys can no longer act.
9. Who can be an Attorney?
Attorneys don’t need to be solicitors or professional advisers. Many people choose family members, friends and other people they trust with no legal background. If an Attorney is not a professional, the important thing is that you know each other well and that the Attorney respects your views and will act in your best interests and that you trust them.
You can ask anyone with mental capacity aged 18 or over to be your Attorney, including:
• your wife, husband, civil partner or partner
• a family member
• a close friend; or
• a professional, such as a solicitor
Make sure that each person agrees to be your Attorney before you name them in your LPA and if they are a professional get some indication of the basis upon which they will charge and that those charges can be afforded. Remember that the role of the Attorney can last for years.
If you choose your wife, husband or civil partner and your relationship is later legally ended, they will usually have to stop being your Attorney. However, you can state in your instructions that they can continue to be your Attorney if your relationship legally ends. If you don’t and they are your only Attorney, your LPA will be cancelled. That is one reason why you are asked to think about a reserve
A person who is on the Disclosure and Barring Service barred list can’t act as an Attorney. They’re breaking the law if they do.
10. When can the Attorney assume responsibilities and act on your behalf?
Your LPA can only be used after it’s been registered by the Office of the Public Guardian (OPG).
There are different rules about when Attorney can start making decisions on your behalf, depending on the type of LPA and whether you still have the mental capacity to make decisions. See paragraph 7 above for the differences between the two types of LPA,
11. If you or anyone has concerns about your Attorney
The Office of the Public Guardian (OPG) does not supervise Attorneys. However, if you or someone believes your Attorney is not acting in your best interests, concerns can be raised by contacting the w OPG or other organisations, such as the police or social services, who may investigate.
12. Questions to ask yourself about the choice of Attorney
Most donors take some time choosing the best people to be their Attorney. Consider these questions:
• How many Attorneys do you want to appoint?
• Are these people willing to act? Have you discussed your LPA fully with them?
• Do they understand the role and responsibilities of an Attorney?
• Do you trust them to act in your best interests?
• Do they know you, your affairs, beliefs and your preferences well enough to make decisions for you?
• Do they have the skills to act under your LPA and do they manage their own affairs well? For example, are they good with money?
• Who would you want to be your replacement Attorney?

13. Certificate providers
The law on LPAs is all about protecting you. When you complete an LPA you have to have the document countersigned by a person who is impartial and who confirms that you understand what you’re doing, that there is no fraud being perpetrated and that nobody is forcing you to make the LPA and there is no other reason for any concerns This person is called a Certificate Provider
You must have a certificate provider to make your LPA valid.
If possible, they should discuss your LPA with you in private, without the Attorney or other people present, before they sign to ‘certify’ their part of the LPA.
14. Who can be a certificate provider
A certificate provider must be 18 or over and be either someone who has known you well personally for at least 2 years, or someone with the relevant professional skills and expertise to be able to confirm the things listed in paragraph 13
Someone who has known you well for at least 2 years?
If you want someone who has known you well for at least 2 years, you should ask a friend or neighbour, someone you know at a social or sports club, a work colleague, or similar.
They must be more than an acquaintance. They have to know you well enough to have an honest conversation with you about making your LPA and about the things they have to confirm when they sign the LPA.
Someone with relevant professional skills?
If you want to choose someone with relevant professional skills, they must be one of the following:
• a registered healthcare professional, such as your GP
• a solicitor, barrister or advocate
• a registered social worker
• an independent mental capacity advocate
• someone else with professional skills that enable them to judge whether you can make the decisions you need to make for your LPA
If you choose a professional, ask what fee they charge before you engage them.
Some people who can’t be certificate providers
The certificate provider must not be:
• an Attorney or replacement Attorney you are about to appoint
• an Attorney or replacement Attorney in any other LPA or enduring power of Attorney that you have already made
• a member of your own or your Attorney’s families, including wives, husbands, civil partners, in-laws and step-relatives
• an unmarried partner, boyfriend or girlfriend of yours or of any of your Attorneys (whether or not they live at the same address)
• your business partner or an Attorney’s business partner
• your employee or an Attorney’s employee
• an owner, manager, director or employee of a care home where you live, or a member of their family
• any other person the Court of Protection may consider is not sufficiently independent

15. People to notify
As further protection for you, you can choose some people who must be notified when you or your Attorney apply to register your LPA.
Why notify people?
Letting people know about your LPA when it’s about to be registered provides extra security. It gives people who know you well a chance to raise concerns or objections.
This safeguard is especially important if there’s a long time between making your LPA and registering it.
However, you don’t have to choose any people to notify to make your LPA valid – it’s an optional extra precaution.
How many people?
You can choose up to 5 people to notify but they can’t be your Attorney or replacement Attorney. Many donors choose family members or close friends as those who would naturally look to their best interests.
If you are going to identify these people do talk to them before you name them and explain the purpose behind naming them, that they don’t have to do anything right away, that they will be notified only when you or your Attorney apply to register your LPA and that they do not have to do anything when they are contacted, unless they have concerns.
How those people are notified
Just before you apply to register your LPA, you must send each of the people to notify a form (LP3) to let them know about it. If your Attorney applies to register your LPA, they must do the same.
The form sets out reasons why people can object and how to object.
Where there are no concerns
If the people to notify have no concerns, they don’t have to do anything.
So, some questions to ask yourself
• Do you want anyone to be notified when you or your Attorney apply to register your LPA?
• Have you discussed what’s involved with those people?
• Do they understand why you want to name them and what will happen if an application to register your LPA is made?
• Are they happy to be named in your LPA?

16. Instructions and preferences
You can leave instructions and preferences for your Attorney within your LPA to direct and guide the way your Attorney acts and the things they do and don’t do, but you don’t have to. If you leave this part of the form blank, your Attorney will be free to make decisions they think are right.
If you’re not sure about what you can put in this section of your LPA, you might want to seek professional advice.
17. Registering the LPA
Remember that your LPA cannot be effective until it has been registered.
To register your LPA:
1. Answer the questions in the registration part of the LPA form.
2. Pay the application fee.
3. Completed the LPA, including the registration section, and VERY CAREFULLY sign it, and have it signed and witnessed by the right people in the right order. This formality is very important and if you are in any doubt, seek advice.
4. Send your signed LPA form to the Office of the Public Guardian (OPG), along with a fee remission form and evidence, if you are applying to pay a reduced fee.
The current fee for applying to register each LPA is £110.
When it receives the LPA, the OPG will check the form to make sure there are no errors. It will then register and stamp your LPA and return it to you. This takes between 8 and 10 weeks.
18. Why you should register your LPA
You don’t have to register your LPA once you’ve completed it – you can register it later – but it’s a good idea to register it as soon as you can. Your Attorney can only use your LPA to make decisions on your behalf after the OPG has registered it and sent it back to you officially stamped.
If you register your LPA as soon as it is signed, OPG can spot mistakes while they can still be changed. If there are any errors, you may have to fill in all or part of the LPA again. You can only do that if you still have mental capacity.
If you no longer have mental capacity, your Attorney can apply to register your LPA – however, it won’t be possible to correct any errors. If there are mistakes, OPG can’t register the LPA and the LPA can’t be used. Your Attorney – or someone else – will have to apply to the Court of Protection to get the power to make decisions on your behalf or get a declaration that the LPA can be treated as valid. This can be a long process and can cost a lot more than an LPA.
I hope you have found this (rather long) introduction useful. If you would like further information I suggest you look at the following websites
https://www.lastingpowerofattorney.service.gov.uk/home#/guide/topic-lpa-basi or you can email or get someone to email on your behalf customerservices@publicguardian.gsi.gov.uk . You can also call that office on 0300 456 0300. Additional information and guidance is also available on a number of major charity websites or you can find other material by simply “Googling” Lasting Powers of Attorney.
If you need any further help do call me directly on 07788 718729 or you can email me on peter@peterlee-wep.co.uk

I should like to acknowledge the information available on the web from OPG and HMG some of which has been applied in the preparation of this summary

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