What is a lasting power of attorney?
A Lasting Power of Attorney (LPA) is designed to allow you (the donor) to choose an individual (the attorney) whom you wish to take care of your affairs at a point in the future when you are no longer able to yourself.
Is that not an enduring power of attorney?
The law changed on 1 October 2007 and it introduced LPAs to replace the existing enduring powers of attorney (EPA). All EPAs that were created before 1 October 2007 will remain in force but powers of attorney entered into after that date have to be in the form of an LPA in order to be valid.
If you currently have an EPA but wish to create a LPA we recommend that you take advice.
Is there just one type of LPA?
No, there are two types of LPA. They are:
- A property and affairs LPA which allows an attorney to make decisions regarding your property and affairs including your house, your bank accounts, and your bills. However, it does not allow your attorney to make decisions concerning your personal welfare. You can allow your attorney to make these decisions even when you have mental capacity. This might be easier for you if, for example, you are out of the country for long periods of time or if you find it difficult getting to the bank.
- A personal welfare LPA allows your attorney to make decisions regarding your personal welfare including your personal health and where you live. However, these decisions can only be made when you lack the mental capacity to make them for yourself; for example, you are unconscious or have a condition such as dementia.
Who can make an LPA?
All persons over the age of 18 with full mental capacity are able to make an LPA appointing one or two attorneys.
Nobody can make an LPA on your behalf, although solicitors can help you create the LPA.
Who can I appoint as my attorney(s)?
You can appoint anyone who is over the age of 18 who is willing to act for you. Attorneys do not have to be professionals such as accountants or solicitors; you can appoint family members including your spouse or civil partner if you wish.
The person(s) you wish to appoint must not be bankrupt at the time of signing the LPA. If they become bankrupt in the future it could result in a property and affairs LPA being cancelled if it has been registered with the Office of the Public Guardian.
What is a certificate provider?
When making your LPA it is necessary for someone to confirm that you were not under any pressure to make it and that you had full mental capacity at the time of signing the power. This person is called the certificate provider.
Who can be my certificate provider?
You can choose two types of certificate provider:
- Knowledge certificate: this is someone that you have known personally for at least two years.
- Skills certification: this is someone who considers that they have the relevant professional skills and experience to certify your LPA. Suitable skills certificate providers include GPs, solicitors, registered social workers or independent mental capacity advocates (MCA).
Who cannot be my certificate provider?
Persons who cannot be certificate providers include:
- Members of your attorney’s family or the attorney(s) personally.
- Business partners or paid employees of a care home in which you currently live.
What else should I consider when making an LPA?
LPAs are important documents and you should therefore consider the following before you make a LPA:
- Do you want one or both LPAs? It is preferable to plan for the worst and have everything in place but you may feel that you only wish your attorneys to have power over your property and affairs rather than your personal welfare and vice versa. Don’t forget that you can make a LPA at any time (so long as you have mental capacity) and both LPAs can be made independently of each other.
- How well do you know your proposed attorney(s)? Attorneys will be given the same powers as you have over your affairs (unless you place restrictions in the LPA) so it is important to feel comfortable with them making decisions for you.
- Do you want to give your attorney unrestricted power to handle your affairs or would you rather retain some control over your affairs? You can limit the extent of the attorney’s power over your affairs by placing conditions and restrictions in the LPA.
- Should the attorneys act together or should you let them act independently? Attorneys can either have the power to act jointly or jointly and severally.
- They must all act together when making decisions and no decision can be made unless all attorneys agree. This can be difficult, especially if the attorneys live far apart. It also means that if one of the attorneys dies, the LPA will be cancelled.
Jointly and severally:
This means that the attorneys can make decisions individually or together. This allows for more flexibility but ensures that there is another important person responsible for looking after your affairs.
- Do you want to appoint replacement attorneys? Replacement attorneys are useful if, for example, one of your attorneys dies, is made bankrupt or loses mental capacity and can no longer act on your behalf. It is important to consider replacement attorneys, as your attorneys cannot appoint someone else to act in their place; this decision must be made by you. You can appoint replacement attorneys at the time that you create the LPA.
What restrictions and conditions can I put in my LPA?
Examples of a restriction for a property and affairs LPA:
- The attorneys can only have a power to make decision in relation to a particular asset/ group of assets (such as a house, set of jewellery, etc.)
Example of a restriction for a personal welfare LPA:
- The attorneys only have a power to make decisions regarding where you live.
- The attorneys can only make decisions regarding the giving/refusing of medical treatment. This can be further restricted to making decisions regarding the giving/refusing of life saving treatment only.
It is possible to place a condition on the LPA stating that the attorneys only have a power to act if you lose the mental capacity. This can also be used in conjunction with other restrictions.
Can I revoke/make changes to my lasting power of attorney?
No. You cannot make changes to your LPA once it has been signed, witnessed and certified. If you need to make changes (other than updating the contact details of your attorneys/notified persons) you should consider making a new LPA.
What happens when I die?
When you die the LPA will no longer be valid and your attorneys will no longer be able to look after your affairs as these duties will pass to the executors of your estate.
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