Power of Attorney
Lasting Power of Attorney
People who lack mental capacity need someone else to look after their legal, financial and health affairs. The Mental Capacity Act 2005 made provision for people to choose someone to manage not only their finances and property should they become incapable (as could previously be done under an Enduring Power of Attorney) but also to make health and welfare decisions on their behalf. They are now able to do this through a Lasting Power of Attorney (LPA). LPAs replaced Enduring Powers of Attorney (EPAs) in 2007, when the Mental Capacity Act came into force.
Property and affairs LPA
You can make a property and affairs LPA to enable someone you trust (the attorney) to make decisions on your behalf about your property and affairs when you are no longer able to make decisions, or you lack the mental capacity to take those decisions yourself. This can include paying your bills, collecting your income and benefits or selling your house. You can put in restrictions, or give guidance to your attorney. The big difference between the old EPA and the new LAP (apart from the sheer number of pages) is that the LPA MUST be at the Office of the Public Guardian (OPG). The LPA can then be used at any time you wish, and also of course, if you become mentally incapable of managing your own affairs. Registration is currently taking about 2 months, at the OPG so it is very important to plan ahead, and not leave the decision about making a LPA until the last minute..
Personal welfare LPA
A personal welfare LPA allows the person/s you have chosen as your attorney to make decisions on your behalf about your personal welfare, eg where you live, how you live, whether medical information is released. It can include the power for the attorney to give or refuse consent to medical treatment, including ‘life sustaining treatment’. This could include a decision as to whether a life support machine is turned off. You have to complete a separate section in the form if this is what you wish. A subsequent advanced decision (if applicable in the circumstances) would be binding on the attorney.
A personal welfare LPA can only be used once the form is registered at the OPG and you have become mentally incapable of making decisions about your own welfare.
Who can make an LPA?
Anyone aged 18 or over with the mental capacity to do so can make an LPA appointing one or more attorneys to make decisions on their behalf.
Who can act as my attorney?
You can choose one or more person you trust to act as your attorney provided they are over 18 and not bankrupt when they sign the form. You can also appoint replacement Attorneys. If you appoint more than one person, you can choose whether they can act together or together and independently. Your attorneys must follow the principles set out in the Mental Capacity Act when they are making decisions or acting on your behalf. They must always act in your best interest and consider your needs and wishes as far as possible. They must also consider any wishes that they know about..
All of your property and money will remain your property and money. Your attorney will however have full power (subject to any restrictions you impose) to manage your finances on your behalf, and in your best interests. The key question to ask yourself before deciding on who is to be your attorney is “do I trust him/her to look after my money and to make decisions in my best interest.”
How to make an LPA
There are separate forms for making a property and affairs LPA and a personal welfare LPA. Before the LPA is valid, you must have a certificate signed by an independent third party called a Certificate Provider. The Certificate Provider could be your doctor or another independent person that you have known personally for at least two years. A family member, attorney or relative of your attorney cannot be a Certificate Provider.
In addition, you should list one or more named persons who you wish to be notified of the application to register the LPA. If none are listed then an additional certificate provider is needed.
How much will it cost me?
As mentioned, the LPA must be registered at the OPG before it can be used. There is a Court fee of £150 for registering an LPA, so if you are registering a property and affairs LPA and a personal welfare LPA, the fee will be £300. You may be exempt from having to pay the fee if you cannot afford it. We can advise you on this. Our costs for all work is £700 plus VAT. This includes preparing the forms, arranging for you to sign, arranging for the Certificate Provider to sign, arranging for the attorney to sign, giving the notice to the person to be notified and preparing the notice form. Preparing and sending the application to the OPG, and dealing with any questions they may raise, and letting you know when a date for registration has been fixed. In short, we do it all!