What is a Lasting Power of Attorney?
A legal Document which allows you to appoint someone to make decisions on your behalf and manage your affairs if you become unable to or unwilling to do so. Ensuring you have LPA’s (Lasting Powers of Attorney) in place can make it easier for carers to manage your affairs in a way you would.
LPAs can only be created if the donor/individual has the relevant mental capacity and are able to demonstrate the powers they are assigning over.
There are two types: health and welfare & property and financial affairs.
- Property & Financial: includes decisions relating to paying bills, accessing accounts, selling your property, collecting benefits
- Health & Welfare: includes decision relating to medication, care home decisions, operations, life sustaining treatment
What if the Donor has already lost their Mental Capacity?
If the donor has already lost their mental capacity, then an application must be made to the Court of Protection to become a Deputy. An application can be made to take over the property & financial affairs and the health and welfare. But obtaining a deputy order for health and welfare is very difficult and it is very unlikely the court will award this. This is why it is imperative to have an LPA in place when the donor still has the required mental capacity.
How many Attorneys can you have?
You must have at least one attorney. You may also have as many attorneys as you like but this may not be practical if you have too many. They may work independently of each other (‘jointly & severally’) or work jointly which means all decisions must be made together. It is recommended to choose ‘jointly and severally’ as if there are more than one attorney and they can only act ‘jointly’ if one dies the whole LPA will fail unless there is a replacement.
Who is the Office of the Public Guardian (OPG)?
A LPA can only be used once it has been registered with the Office of the Public Guardian. The OPG regulate the use and the registration of LPAs and Enduring Power of Attorneys (EPA).
Who needs to be notified?
As part of the process, a person needs to be notified that you are preparing a Power of Attorney (LPA). This must be someone who knows you well. This gives the person an opportunity to raise any objections or concerns. If you do not list a person to be notified you must have two certificate providers.
Who is the Certificate Provider?
This is the person who will verify that the donor has mental capacity to understand what they are singing.
The Certificate Provider must be either:
Someone who has known the Donor for at least 2 years as more than an acquaintance and is able to state that, based on the relationship they share with Donor, they are able to make an informed statement that the Donor is of sufficient mental and physical capacity to give the Power of Attorney
Someone who possesses the relevant professional skills necessary to form the opinion that the Donor is of sufficient mental and physical capacity to give the Power of Attorney. Such professions would include:
- A registered healthcare professional e.g. GP
- A solicitor or barrister or advocate
- A registered social worker
Who needs to Sign?
- Donor: plus, witness (anyone but the attorneys)
- Certificate provider: no witnesses needed
- Attorneys: plus, witness for each attorney (anyone other than the donor)
How Long is the Process?
Drafting – Final Duties will prepare the documents within 5 working days of receiving all documents and information.
Registration – Statutory is 5 weeks but OPG usually have a back log so can take up to 8-10 weeks from receiving all correct information.
What Happens if I fail to Register the Lasting Power of Attorney?
There is no time limit for making an application to the OPG to register the LPA. The application can be made by the attorneys or by the donor.
It is recommended to register the LPA as soon as possible as if there is a mistake on the forms the OPG may refuse to register them. Furthermore, the registration process can take up to 10 weeks.
Where should I keep my Lasting Power of Attorney?
Once you have registered the LPA you will be issued with a document. This must be kept somewhere safe. However, it is important that your appointed attorneys know where to locate it when you do lose mental capacity.
Revoking a Lasting Power of Attorney
The donor may revoke an LPA at any time – as long as they still have the required mental capacity.
Revocation must be served on the OPG, attorneys and any establishments that it has been register with.
Do I need to inform the OPG of change of details?
It is advised that if the donor has change of details, they should inform the OPG to update their records but the actual power of attorney will not be amended.