What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney is a legal document where you (the Donor) can appoint an Attorney to handle your affairs should you not have the capacity you require to do so yourself. The Donor must have mental capacity at the time of making the LPA and must be over the age of 18.
The Donor can appoint multiple Attorneys if they wish and there is also the option to appoint a replacement Attorney to step in should one be unavailable. Attorneys can also be appointed to work together jointly, or they can be appointed to work independently, together, known as “jointly and severally”.
A Lasting Power of Attorney document must be signed by all parties and witnessed.
An LPA must also be signed by a “Certificate Provider”. This person must sign the document to confirm the following:
- The Donor making the LPA has mental capacity to make the LPA and is doing so of their own free Will and without pressure.
- The Donor understands the implications of making the LPA and is usually someone that has known the Donor for at least two years or more.
Once all of the above is completed, the LPA documents must be sent to the Office of the Public Guardian for registration. There is a registration fee of £82.00 per LPA document. A Lasting Power of Attorney can only be used once it is registered. The current waiting period for receipt of a registered LPA is 20 weeks.
There are two types of LPA’s you can make as follows: -
Property & Financial Affairs LPA – this type of document will allow your appointed Attorneys to deal with financial matters on your behalf. This can include payment of your bills, managing your savings and investments and even the sale of a property for you.
A property & financial affairs LPA can be used by the Attorney to assist the Donor as soon as it is registered, providing they have the Donor’s permission to do so. If the Donor has lost capacity to make decisions for themselves and the document is registered, it can then be used in this instance.
Health & Welfare LPA – this type of document allows your Attorney to assist with decisions concerning your health, care and daily living needs. Your Attorney will also be able to decide where you live should this be necessary.
A health and welfare LPA can only be used if the Donor is incapable of making decisions for themselves. This is due to the fact that the type of decisions this document would allow authority for are very personal to the Donor and can be extremely sensitive.
What is an Enduring Power of Attorney “EPA”?
An Enduring Power of Attorney is a document made before 1st October 2007. You can no longer make an Enduring Power of Attorney. They are documents made by the Donor appointing Attorneys, but they are not registered or lodged with any Court. If the EPA is not registered and a subsequent Lasting Power of Attorney is made, the EPA would not be of use.
An Attorney can use the Donor’s Enduring Power of Attorney if they have made one, but they must make an application to the Office of the Public Guardian to do so.
What if I lose capacity and have not made an LPA?
If you have not made a Lasting Power of Attorney in your lifetime and you lose mental capacity to communicate your wishes and decisions, an application would have to be made to the Court of Protection.
This application can be brought by people wishing to act as “Deputies”.
The Court of Protection are a specialised division of the Court that deals with the handling of individuals affairs where they have lost capacity to make their own decisions. Evidence must be provided to the Court in the form of a COP3 Capacity Assessment Form to confirm the Donor’s lack of Capacity and this must be completed by a medical professional.
When making a Court of Protection application, you must also notify individuals (which may be friends and family) of your intention to make the application.
The importance of making an LPA during your lifetime is paramount as a Court of Protection application can take anywhere from 21 weeks to 12 months from the date of your application for your Order to be issued, stamped and received by you. In more complex circumstances should anyone object to the Order being made, it can take longer.
There is an increased cost for a Court of Protection with fees ranging far beyond those of LPA’s depending on the complexity of the matter. There is also a Court Fee of £371.00.
If you wish to ensure your affairs are in order and would like to discuss putting in place a Lasting Power of Attorney, please do not hesitate to contact our friendly Wills and Probate Department on 01754 897150 and a member of the team will be happy to discuss the matter further with you.