A Power of Attorney is a legal document where a person gives another person or persons (the Attorney) authority to make certain decisions on his or her behalf. A Lasting Power of Attorney (LPA) is a special type of Power of Attorney, in that it continues even if the person giving the powers becomes mentally incapable of dealing with their affairs.
So that you are clear, an LPA:
Has nothing to do with what happens when you die.
Does not prevent you from continuing to make decisions and deal with your own affairs for so long as you are capable. Indeed, your Attorney must take on board your views so long as you are capable of giving them.
You are not giving away any of your assets to anyone else – your Attorney is just able to deal with those assets.
Types of LPA
There are two types of LPA as follows:
An LPA – Property and Affairs (referred to below as an LPA-Financial) which allows your Attorney power to deal with your property and finances.
This can include:
Buying or selling property
Opening, closing or operating a Bank or other account
Giving access to financial information
Claiming, receiving and dealing with all benefits, pensions, allowances etc
Receiving income, inheritance or other entitlement on behalf of you
Dealing with your tax affairs
Paying your mortgage, rent and household expenses
Insuring, maintaining, repairing your property
Making limited gifts on your behalf
Paying for private medical care or care home fees
Applying for entitlement to funding for NHS and social care
Buying a vehicle or other equipment to meet your needs
An LPA-Personal Welfare (referred to below as an LPA-Welfare) which allows your Attorney to make welfare and healthcare decisions on your behalf, but only when you lack the mental capacity to make those decisions yourself.
This can include:
Where you should live and who you should live with
Your day to day care including diet and dress
Consenting to or refusing medical examinations and treatment of you
Arrangements needed for you to be given medical, dental or optical treatment
Assessments for the provision of community care services
Whether you should take part in social and leisure activities, education or training
Your personal correspondence and papers
The right to access personal information about you
To make complaints about your care or treatment
In addition under your LPA-Welfare you are able to give your Attorney the power to make life sustaining treatment decisions on your behalf. This essentially includes the ability for your Attorney to decide whether or not you should be kept alive in certain circumstances. This is a very significant power you can place in the hands of your Attorneys and before making any decision you should discuss this with the Attorney, your GP, any other relevant health or social care professionals and your religious advisor. You must state on the form whether your Attorney should have that power or not.
As an alternative to giving your Attorney the right to make decisions over life sustaining treatment, you may prefer to put in place an Advance Directive (Living Will). An Advance Directive is a separate document where you give directions to your doctor as to whether you should receive treatment in circumstances where the quality of your life is negligible and you are otherwise unable to make any decision at that time. Please raise this if you wish to discuss it further.
In both cases you are not authorising euthanasia.
In respect of both types of LPA you can place any restrictions and conditions on the Attorney’s powers and also to provide the Attorney with guidance as to how you would like them to carry out their duties and make decisions (see below). An Attorney should always act in your best interests.
Your Attorney
As you can see from the powers you can give to your Attorney, an LPA is a very important document and you should take great care as to whom you appoint. An Attorney should be trustworthy and have the appropriate skills to make the relevant decisions. They should be able to get along and work with the other people and organisations who will be involved in your life, including any other Attorney. You can have different Attorneys for each type of LPA, but this can cause confusion and conflict. Eg Choice of care home – one LPA gives control of finances, the other the choice of where you live – who takes precedence if the different Attorneys disagree?
An Attorney loses their powers if they disclaim those powers, die, lack mental capacity, dissolve or annul their marriage or civil partnership to you or in the case of the LPA-Financial, become bankrupt.
You have a choice as to how many Attorneys you appoint. You can appoint one or more than one. If you appoint more than one then you have to decide whether they should always act together or they can act separately of each other. You may even appoint your Attorneys to act together for some things and separately for others, although this needs to be considered carefully as in some circumstances it can cause problems when using the power. Set out below are some of the pros and cons of each of those options.
One Attorney
If there is only one person who you trust to deal with your affairs then this would be the best option. However, the possibility of abuse or the making of a bad decision is that much greater as there is no other individual who the Attorney needs to refer any decisions or can otherwise keep a proper check on the Attorney’s actions. There would also be a problem if the Attorney was no longer able to act temporarily or completely (as set out above). The LPA would then be unusable, unless you had also appointed a replacement Attorney (see below).
Two or more Attorneys acting together
If there is more than one person who you trust and would have the appropriate skills then it usually makes sense to appoint two or more Attorneys. The principal advantage of them having to work together is that it gives both you and them the most protection from anyone trying to abuse the power or making a bad decision. All decisions and the signing of any paperwork would have to be dealt with by all the Attorneys. However this potentially raises practical problems if the Attorneys are not local to each other or one of them was unable to act at any time, even if only on a temporary basis. The LPA would be unusable without the availability of both Attorneys. Again, this can be helped in part by the appointment of a replacement Attorney.
Two or more Attorneys acting together or independently
If you have two or more persons who you trust and are capable of acting as your Attorneys then this is the most flexible option available in that although the Attorneys can make decisions together they can also work separately. As such if one was not available then the other could still act on your behalf. Because they can work independently this does lessen your protection from abuse or the making of a bad decision, but there would at least be one other person who you have chosen with the legal right to keep a check on your affairs and the decisions being made.
Two or more Attorneys sometimes acting together and sometimes acting independently
This is a mixture of the last two options whereby in making some decisions the Attorneys must act together but in others they can act independently. In general terms all of the issues that arise are as set out above, but dependent upon whether the Attorneys need to act together in respect of one particular decision or can act independently. It is possible that there may be some difficulties with some organisations accepting an LPA set up on this basis and therefore the position needs to be very clear. It may be better to use the restrictions and conditions as a means of putting in place any additional protection that you feel is necessary on certain issues.
A Replacement Attorney
A replacement Attorney is an Attorney who will stand in place of a first choice Attorney, should that Attorney no longer be able to act (see circumstances mentioned above). This is particularly helpful if you are selecting only one Attorney or two or more Attorneys who must act together. All of the same issues arise in choosing a replacement Attorney as apply to your first choice Attorney. You can have more that one replacement Attorney and make their appointment subject to certain restrictions and conditions, such as which first choice Attorney they should replace and in what circumstances.
Restrictions and Conditions
Set out at the beginning of this leaflet is a list of the types of decisions and actions which your Attorney is entitled to take under your LPA Financial and LPA Welfare, if you do not place any restrictions or conditions on their powers. You are entitled to place such restrictions and conditions as you like in order to protect your interests. Examples of some conditions are as follows:
LPA – Financial
Buying or selling property – your Attorney will have the ability to purchase, sell, mortgage etc your property on your behalf. You may prefer them not to have that power without at least having referred the matter to you or somebody else and gaining their approval.
Making of gifts – your Attorney has limited power to make gifts from your property. It must be to someone whom you are related or connected and on specific occasions such as birthdays, weddings and other family events when you might have been expected to have made such a gift. Gifts can be made to charities that you support. The gift must always be reasonable in relation to the value of your assets and your on-going needs. You cannot increase the power of the Attorney to make greater gifts, but you can remove their right to make such gifts.
Delegation of Investment Powers - whether your Attorney can transfer your assets in to the hands of a management scheme operated by a stockbroker or Bank. Without the condition they would not be able to do so.
Accounts - you could require your Attorney to produce accounts to be audited i.e. by your solicitor or accountant.
Your Will – Your solicitor is not able to disclose your original will to your Attorney unless you specify so.
Release of Information - You may wish to restrict what information your Attorney can get access to.
When the Attorney’s powers start - It is a matter of law that the LPA Financial cannot become effective until it has been registered with the Office of the Public Guardian (OPG). However, you can specify that even after registration it does not become usable unless you became incapable of dealing with your affairs. However, this can be problematic as it may be necessary for proof of your incapacity to be provided to any organisation which your Attorney is dealing with to prove that you remain incapable every time they deal with that organisation. It may also be that it would be advantageous to you to have some assistance even whilst you remain capable. You can place a restriction to say that your Attorney should only register the LPA if they believe, or are told by a Doctor, that you lack capacity to make a decision. Until that time the LPA would of course not be useable. However, there are reasons not to delay registration indefinitely (see below).
LPA - Welfare
Where you should live and who you should live with – you could place restrictions on the ability of your Attorney to decide on these issues alone.
Personal contacts – again, you could indicate that your Attorney cannot make a decision as to where you go or who you have contact with.
To make just welfare decisions or just medical decisions – you may not be happy for your Attorney to make health decisions regarding you or alternatively not to make welfare decisions. This may be due to religious or spiritual beliefs.
In the case of both types of LPA any restrictions and conditions need to be considered carefully, to ensure that in the worst case scenario your Attorney has the ability to deal with all matters which need to be decided upon on your behalf.
Guidance
Unlike restrictions and conditions, guidance is not binding upon your Attorney, but you can expect your Attorney to take such wishes into account when making any decision on your behalf. You may for example wish to give your Attorney guidance as to how much you would wish them to give to relatives on birthdays or the circumstances when they should sell your property. Also where you would want to live and what treatments you may prefer not to have.
Choice of persons to be notified
You can choose up to 5 people to be notified when any LPA is registered with the OPG. Subject to any restriction you may have included, once the power is registered it can be used by your Attorney. It is considered an important safeguard that other people are made aware when your LPA is registered. The intention is that the individuals notified will keep a look out on your behalf to see that your Attorney is not abusing their powers. As such, ideally the person should be someone who is interested in you and with whom you are likely to have contact throughout your life. You should perhaps speak to them to make sure that they are prepared to take the role seriously. Also it is not a good idea to choose someone who is likely to conflict with your Attorney although on the other hand not someone who is under the influence of your Attorney.
The people notified have the right to object to the registration. It is usually advisable to have at least one person notified of the registration. However, it is not an absolute requirement. If you don’t choose anyone to be notified then you must have an additional Certificate Provider (see below), which may add an additional expense to the creation of the LPA.
Choice of Certificate Provider
To be valid, an LPA must include a certification completed by an independent third party known as the Certificate Provider. The Certificate Provider has to certify that:
You understand the purpose of the LPA and the scope and authority of it
There is no fraud or undue pressure being placed on you to create the LPA
There is nothing else that would prevent the LPA being created
It is open to you to choose who you wish to act as your Certificate Provider but they must be over the age of 18 and cannot be:
• A member of your family
• A family member of any of your Attorneys
• Your business partner or paid employee
• Any Attorney appointed under another LPA or an Enduring Power of Attorney
• The owner, manager or employee (or a family member or partner of theirs) of a care home in which you are living
• A Director or employee of a trust corporation appointed as your Attorney
There are two types of Certificate Provider:
A knowledge based Certificate Provider – someone who has known you personally for at least two years
A skills based Certificate Provider – someone with the relevant professional skills and expertise to certify the LPA. This includes a registered healthcare professional (including a GP), a registered social worker, a solicitor, a barrister, an independent mental capacity advocate and someone else who considers they have the relevant professional skills.
You are best advised to appoint a Certificate Provider who has the appropriate knowledge and experience of issues relating to mental capacity and the use of the LPA. It is important that any Certificate Provider has the relevant knowledge and experience to be able to give the certification as mentioned above.
As such this would tend to mean that a skills based Certificate Provider is the better option. In addition, the use of a skills based Certificate Provider has greater standing should there be any challenge to the validity of the LPA. A skills based Certificate Provider is usually going to want to charge for providing the certification.
Registration
As has been mentioned your LPA will not be valid until it has been registered with the Office of the Public Guardian. There is a cost involved for registering each type of LPA with the OPG. The LPA can be registered by you or your Attorneys at any time after it has been completed and signed by all those required to sign.
The persons you have indicated should be notified about registration will need to be notified at this point in time.
The principal issues in deciding whether to register immediately or delay are as follows:
| Delay Registration | Register Immediately |
| The registration fee is not paid until the Power needs to be used. The fee may have changed in the meantime. | The fee is paid even if you do not need the Power to be used immediately. You know what the cost is. |
| The registration process delays the use of the Power for around 5 to 6 weeks. The Attorneys will not be able to use the Power during the registration process. The Attorney can apply to Court in an emergency but there will be extra costs involved. | As soon as the Power needs to be used it is ready and available. |
| If you change your mind you can cancel the LPA without any problem. | If you wish to cancel the LPA and make another one then additional fees will need to be paid to the OPG. |
| No requirement to keep the OPG informed of any change of address/name. | The OPG needs to be kept informed of any change of address/names. |
| You retain control over the LPA Financial so it cannot be used until you choose for it to be registered or it needs to be registered | Your Attorney can use the LPA Financial immediately now registered. (subject to restrictions) |
You should also be aware that once registered certain information becomes a matter of public record. This includes:
• Your name (including previous name) and date of birth
• The type of LPA you have (but not its contents)
• The date the LPA was created and registered
• The names of your Attorneys
• The type of appointment used (sole, together etc)
• Whether the LPA contains any restrictions, conditions or guidance (but not the actual details)
• Whether a note has been attached to the LPA (but no details of the note)
In addition someone can make an application, paying a fee, to obtain further information about the LPA. However they will have to explain to the OPG why they require this information and that the release of it is in your best interests.
© Jacobs & Reeves Solicitors