What is a Lasting Power of Attorney?
Imagine a situation where, either suddenly or gradually, you lose your ability to make decisions or to sign your name. This situation is not as rare as you think. It could be caused by many things including, a stroke, an accident, Alzheimer’s or dementia.
In these circumstances you may not be able to deal with your finances and property or decisions about your health and welfare; this is where a Lasting Power of Attorney comes in.
A Lasting Power of Attorney (or LPA for short) is a legal document which allows you to choose the person or people who will assist you or ultimately take over decision making on your behalf. They are known as your Attorney. You can have more than one Attorney, they can be authorised to act independently or together and they must act in your best interests.
There are two types of LPA to consider and they have very different purposes:
A Property and Affairs LPA allows your chosen Attorney to assist you in making decisions regarding your property and finances. If it becomes necessary, they can take over dealing with your finances on a day to day basis and even sell your property on your behalf.
A Health and Welfare LPA allows your chosen Attorney to make decisions about where you live and the type of care you may need. You even have the option to allow your Attorney to make decisions about whether you receive life sustaining treatment if you lacked capacity to make that decision yourself.
Both types of LPA must be registered with the Office of the Public Guardian (OPG) before they can be used. Once registered, a Health and Welfare LPA cannot be used until you lose mental capacity, however, the Property and Affairs LPA can be used straight away if you wish. This could be useful if you were going abroad for several months or were in hospital for a long time. Registering an LPA at the OPG costs £130.00 per document. Therefore if you have both types of LPA it will cost you £260.00 in court fees. If the person making the LPA (the Donor) is in receipt of certain means tested benefits or has a gross income of £12,000 or less (figures from April 2013) the fee may not be payable or may be reduced by 50%.
What should I consider before making a Lasting Power of Attorney?
An LPA is an important document whether you are young or old and it is could be considered more important than a Will as it deals with your affairs whilst you are still alive!!
The Donor is the person making the LPA and must have mental capacity. This means that they must understand the document, what powers it gives and what implications those powers have.
You should think very carefully about who you would want as your Attorney. It must be someone you trust implicitly because with a Property and Affairs LPA they will be able to access your accounts and investments and deal with your property as if they were you. If you have a Health and Welfare LPA your Attorney could be making life and death decisions about you.
Your Attorney could be your spouse, a friend or a professional ie: a solicitor. They must be an individual, with mental capacity who is over 18 years old. Your Attorney on a Property and Affairs LPA cannot be a bankrupt.
It is worth noting that an Attorney should not simply go ahead and make all decisions for the Donor. Their role as Attorney is to help the Donor make the decision unless they really can’t make it, then and only then should the Attorney make the decision for the Donor.
The Certificate Provider
When you make an LPA someone must sign the document as your ‘Certificate Provider’. This person is signing to confirm that you have the mental capacity to understand the document and the implications of it and to confirm that there is no undue influence or fraud. They can either sign the document as being a ‘knowledge’ based Certificate Provider eg: they have known the donor for a minimum of two years or they could be a ‘skills’ based Certificate Provider eg: someone who has professional skills in assessing mental capacity.
Unless there is any question over the mental capacity of the person making the LPA the solicitor preparing the document will usually act as the Certificate Provider. If mental capacity is called into question the solicitor may suggest that a doctor acts as Certificate Provider.
If a knowledge based Certificate Provider is signing the document they must not be under 18 years old, a member of the Donor’s family, an employee or partner of the Donor, an Attorney in the LPA being signed or any other LPA that the Donor has made, a member of the Attorney’s family or an employee or business partner of the Attorney.
The Person to be Told
As a safeguard within the LPA registration system the Donor can notify a ‘Person to be Told’. Put simply, a notice is sent to the nominated person to advise them that the Donor is making and registering an LPA. This gives the Person to be Told an opportunity to object if they believe that the Donor has been forced into making the LPA.
How do I make a Lasting Power of Attorney?
As with making a Will you can make an LPA yourself by downloading the forms from the OPG website, some Will writers prepare LPAs or you can go to a solicitor. As with a Will of course what seems like a simple document can have its pitfalls. If you send the document to be registered and there are errors in it the OPG may refuse it and you may lose your court fee. If you go to a solicitor they will complete the document for you, usually act as Certificate provider and they have indemnity insurance if anything goes wrong.
Caroline J Wilden
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to probate-solicitors. directly.