What is a Lasting Power of Attorney? – a guide
The principle behind lasting power of attorney (LPA) is to make provision in case your mental capacity deteriorates and consequently you are unable to make decisions and manage your financial affairs. The scenario often thought of is a person with dementia, but lasting power of attorney may be needed for many other situations too, such as after a stroke or car accident.
Why make a Lasting Power of Attorney?
It is only possible to apply for Legal Power of Attorney while you have capacity. If you suddenly lose mental capacity, it will be too late to apply for an LPA. In this situation, your relatives would need to apply to the Court of Protection in order to act on your behalf. This process is far most costly and time consuming than applying for an LPA in advance while you are well and have mental capacity.
Two types of Lasting Power of Attorney
There are two different LPAs which carry distinct rights and responsibilities. You can apply for one only or both. They cover:
- Health and well-being
- Property and financial affairs
Health and welfare LPA
This gives the individual/individuals acting on your behalf (called attorneys) the power to make decisions about:
- Your day-to-day personal care, such as eating, washing and dressing
- Your medical care
- Whether you need to move into a care home
- Decisions about life-sustaining treatment
Property and financial affairs LPA
This gives your attorney/attorneys the power to:
- Manage your bank or building society accounts
- Collect your pension or benefits
- Make a decision about and manage the sale of your home
Choosing your attorney
The first step in making an LPA is choosing your attorney or attorneys. In legal terms, you are called the ‘donor’ giving provision for ‘attorneys’ to act in your best interests should you lose mental capacity. This is very important decision: an attorney needs to be someone who you can trust to make decisions on your behalf. You can choose more than one attorney; there is no limit to the number of attorneys you can appoint. But having lots of people may make decision making more difficult. Often, people appoint their children as attorneys. There are some rules about who can act as attorney, according to LPA type:
Health and Care LPA
- Attorneys must be 18 and over with mental capacity
- Attorneys must be 18 and over, with mental capacity and must not have been made bankrupt
- A trust corporation can act as financial attorney. This may be a good option for individuals who do not have a spouse, children or close family, although they will charge for acting
What do I have to do to make a LPA?
You can make your LPA application in three different ways:
- You can go through the process yourself online through the Government website. Start here: https://www.gov.uk/power-of-attorney/overview
- If you are making an application by yourself and need help, the Office of the Public Guardian is the best place to ask for advice and support. They can be contacted by calling 0300 456 0300 or email: email@example.com
- If you would like to make the application yourself but want to apply with paperwork, rather than online, you can contact the Office of the Public Guardian for the relevant forms. Your local Citizens Advice Centre should also be able to provide them
- You may prefer to make a LPA with the advice and guidance of a solicitor. If you know a reputable local firm, you may find this is a good choice. Solicitors fees for working on your LPA are likely to be upwards of £250 but should be no more than approximately £500.
The process: step-by-step
There is a form for each of the two types of LPA, health and well-being, financial and property. Once you have completed the form, a number of signatures are required. If you are making your application online, you will need to print off the forms so they can be signed.
- An independent professional will need to sign the form to state that you have the mental capacity to make an LPA, that you understand what an LPA is and that you made the decision yourself. This person is called the certificate provider and they are usually a professional such as a doctor, social worker or solicitor.
- The certificate provider must have known you for two years, but they need to be independent; they are not a family member nor are they named as an attorney
- You need a person to witness you signing the form
- Each attorney must sign the form, agreeing to act as attorney if needed and stating they understand what their duties involve
How long does it take?
It currently takes eight to 12 weeks for applications to be registered (this means the process is complete and the LPA is legally binding). It costs £82 for each LPA you apply for, therefore £220 if you are applying for both Health and Well Being and Financial and Property. However, if you do the application yourself without using solicitors, there are no other fees. If you would struggle to pay the application fee, the fee may be waived; you can ask advice from the Office of the Public Guardian or your Citizens Advice bureau.
Who is in control?
A common barrier to people applying for a LPA is a fear it means they will lose control over their life and their money. Registering an LPA does not change who is in control: no changes will take place unless you lose mental capacity.
Mental capacity is something which is very carefully assessed with clear criteria. For example, becoming a little more forgetful and having difficulty with the more complex side of personal banking does not mean loss of mental capacity. Power is only transferred to your attorney if there is a substantial loss of capacity and it is in your best interests for someone to make decisions on your behalf.
It is helpful if you talk to the people you appoint as attorneys about your wishes, so you can have confidence that they fully understand your preferences if do they need to act on your behalf at a future stage.
Bear in mind, applying for a LPA is one aspect of lifetime planning and you may also wish to seek legal and financial advice on preparing a will and estate planning.