Lasting Power of Attorney
LASTING POWERS OF ATTORNEY (LPA)
What is an LPA?
There are two types:
- One type deals with property and affairs, which gives your attorney authority to deal with your property and finances
- The second type concerns health and welfare, which allows your attorney to make health and welfare care decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
What happens if you don’t have a lasting power of attorney?
If you lack mental capacity it will be necessary for an application to the Court of Protection for an appropriate order, such as the appointment of a deputy to make decisions on your behalf. This may cause delay and expense. An enduring power of attorney made before the 1st October 2007 will remain valid providing it was prepared correctly.
How do you make a Lasting Power of Attorney?
There are separate forms for a property and affairs Lasting Power of Attorney and for a personal welfare LPA. The forms are not difficult in themselves to complete, but they will require a lot of thought and explanation. They are completed by the “donor”. The donor is the person who gives authority to the “attorney” to handle their affairs. Part A contains details about the donor and the attorney and Part B contains a “Certificate Provider’s Statement”. Section C is completed by the attorney in which they set out their personal details, confirm that they have read the prescribed information and understand their duties under the Lasting Power of Attorney.
What does a donor need to consider if they are planning to complete a lasting power of attorney?
- Choice of attorney(s)
- How do they want them to operate in their role as attorney?
- Do they want to appoint replacement attorneys, and if so, when?
- Do they wish to place any restrictions and/or conditions on the attorneys?
- Do they want to give attorneys guidance?
- Do they want your attorneys to be paid?
- Who do they want to notify about the registration of the power?
- Who will be the certificate provider?
- Who can be the certificate provider?
Who should be an attorney?
You can have more than one attorney. They must be trustworthy, competent and reliable and possess skills and ability to carry out the necessary tasks. Attorneys can act together and independently.
Anyone asked to be an attorney should consider whether they have the skills and the ability to act and whether they wish to do so, bearing in mind the duties and responsibilities imposed on them.
Who is a certificate provider?
This is to safeguard the donor because the certificate provider confirms that:
• The donor understands the purpose of the Lasting Power of Attorney and the scope of the authority given under it;
• That no fraud or undue pressure has been used to induce the donor to make the Lasting Power of Attorney;
• There is nothing else preventing the Lasting Power of Attorney being created
Who can be certificate providers?
The law limits certificate providers to be:
- A person appointed by the donor who on account of his or her professional skills and expertise reasonably consider that they are competent to make the judgements necessary to act for the donor. For example, a solicitor, doctor or a registered social worker.
- Someone chosen by the donor who has known him personally for at least 2 years immediately before the date the LPA is signed
Who cannot be a certificate provider?
- A member of the donor’s or attorney’s family
- A business partner or paid employee of the donor or attorney
- An attorney appointed under the LPA or an EPA made by the donor
- An owner or director or employee of a care home in which the donor or a family member lives
When must you register a Lasting Power of Attorney?
An LPA cannot be used unless and until it is registered with the Office of the Public Guardian (OPG). A copy of the LPA must accompany the application to the OPG. On receipt the OPG sends notice of the application to the persons listed by the donor in part A of their LPA. The recipient has up to 5 weeks to object to registration and gives the grounds for objection. Typical objections are that the donor lacked the capacity to make the LPA or the attorney is bankrupt.
Would you like to set up a lasting power of attorney? Here are some options:
- Fill in our questionnaire / application at the top of this page. One of our specialists will contact you to discuss your enquiry.
- Call us today on 0208 920 3190 for further advice and maybe book an appointement to come in and see us.
- Click here to email us via our online form to ask any questions / concerns you may have, we will respond as soon as possible.
Avoiding financial abuse of the elderly
I recently acted in a case involving an elderly widow. Alice (not her real name) lived alone in a large house and had substantial savings. She felt isolated (her son lived in Australia) and was getting forgetful and confused about her affairs. She took great comfort from her neighbour Janet (again, not her real name). Alice looked forward to Janet’s visits for cups of tea and a chat and ever so grateful to her for help with trips to the supermarket. On shopping trips and as a mark of her appreciation, Alice paid for Janet’s groceries. Once Alice was upset to see Janet crying because she could not pay her gas bill, and insisted on settling the debt. After a while, Janet began to get more involved in Alice’s affairs, taking her to the bank so Alice could draw out large sums of money. The bank never thought to question the payments. After all, Alice was giving the instructions to make the withdrawals wasn’t she?
When Alice died her son came to see me to help with the administration of his late mother’s affairs (known as “probate”). He was distraught to find that about a year before her death Alice transferred her home to Janet. What is more when he enquired with the bank they advised him her savings had been reduced to a few hundred pounds! When challenged, Janet told the son that the property was a gift made by Alice in appreciation of the help and support given, and money was taken from the account to cover “expenses” in managing the affairs.
The son made a successful application to the court to recover the property gifted to Janet. The court was not satisfied that the payments were made with Alice’s free and informed consent. Janet could not show Alice took legal advice before the property was transferred. Further, medical evidence showed Alice was suffering from dementia and she could not have had the capacity to make important decisions. Although Alice’s son was able to recover the house Janet had squandered the savings.
You need to protect yourself from financial abuse. Make a lasting power of attorney for your property and affairs and your personal welfare. The document will set out what the attorney can and cannot do with regard to your property and your welfare. Equally attorneys under an enduring power of attorney should ensure that the document is registered at the Court of Protection the moment they have reason to believe the person needing care has become or is becoming mentally incapable of dealing with their affairs. Failure to do so could leave the attorney open to a claim that they are acting unlawfully. If it is too late for someone to make a lasting power of attorney (because they do not have capacity), an application can still be made to the Court of Protection to appoint a deputy.
You can contact Solicitor Michael Stennett on 020 8920 3190 if you have any questions to ask about this topic.