What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a document which allows another person to make decisions for you in respect of your finances and/or your health when you are unable to make such decisions.
Terms used in an LPA:
Donor - person making the LPA
Attorney - the person(s) appointed to act on behalf of the Donor and to make decisions regarding their financial affairs and/or health
Certificate Provider - the person who confirms the Donor has full mental capacity to make an LPA and understands the implications of them. This can be someone you have known for 2 years, a doctor or solicitor.
There are two types of Lasting Powers of Attorney; Property & Affairs and Health & Welfare:
A Property & Affairs Lasting Power of Attorney allows the attorneys to make decisions in respect of your finances (ie buying or selling property, opening, operating and closing any bank, building society or other accounts, obtaining access to your financial information, claiming receiving or using benefits and pensions allowances on your behalf, receiving Inheritance due to you, dealing with your Tax affairs, paying your mortgage liabilities). This document can be used by your attorney with your consent or if you lose mental capacity.
A Health & Welfare Lasting Power of Attorney will cover issues such as where you should live, who you should live with, your day to day care including diets and dress, consenting to or refusing medical examinations, arrangement for your medical, dental or optical treatment. There is also a section within this document where you can decide if you would like to give your attorneys the authority to make decisions regarding life sustaining treatment. This will involve decisions which can prolong or shorten your life. This document can only be used if you lose mental capacity.
Who can be an Attorney?
You can appoint your spouse, children or friend to be your Attorney. If you do not know or have anyone that you feel would act as your attorney, you can appoint your solicitor as your attorney instead.
You can also appoint replacement attorneys in the event your first named attorney can no longer act for you.
You can therefore appoint your family in two different ways:
- You appoint your spouse as your sole attorney. Your children can be appointed as your replacement attorney and will step in when your spouse stops acting for you.
- You appoint your spouse and children as your attorneys who will act jointly and severally. This means that any one of them can act for you at any time however they must keep each other informed of any decision.
What is the process?
Your LPA needs to be signed by you as the donor, your attorneys and the certificate provider. Your signature and your attorneys signature also has to be witnessed which can be done by the certificate provider. You also have to ensure your LPAs are signed in the correct order.
Once everyone has correctly signed the documents, your LPAs will then be sent to the Office of the Public Guardian for registration. There is a registration fee of £82 per application however depending on your annual income or if you receive certain benefits, you may be eligible for an exempt or reduced fee. It will take approximately 12 weeks for the LPAs to be registered and once they have been returned, they will be ready to use.
What’s the difference between an Enduring Power of Attorney and Lasting Power of Attorney?
Enduring Powers of Attorney (EPAs) were replaced by LPAs on 1st October 2007. EPAs allow the attorney to deal with the donor’s property and financial affairs only and do not authorise the attorney to make decisions regarding the donor’s health and welfare. An EPA would be valid (if correctly drafted) and ready to use as soon as it had been signed however if the donor lost or was losing mental capacity, the attorneys must apply to Court for the EPA to be registered at that stage.
EPAs are still valid and can be used however new ones are no longer executed and you would have to make a Property & Affairs LPA instead.