Power of attorney
Each of us hopes to remain healthy and independent for as long as possible. But there can come a time when we are no longer physically or mentally able to make decisions for ourselves. For this reason it is worth planning well in advance so someone you know and trust can manage your affairs for you if the need arises.
You will need to grant someone you trust, or a number of people, the legal power to act on your behalf when and if you are not capable of making decisions. In England and Wales this legal power is known as Lasting Power of Attorney (LPA). In Scotland the equivalents are known as a Continuing Power of Attorney (CPA) or Welfare Power of Attorney (WPA). In Northern Ireland the use of an Enduring Power of Attorney is available for financial decisions only.
'A Power of Attorney is a legal agreement to enable third parties such as close family members to act on your behalf if you experience difficulty making decisions'
A Lasting Power of Attorney (LPA) is not quick to set up but essential to have. Without an LPA, even close family members may not have the authority to make decisions about your care in old age, your financial welfare or your assets. Never assume a person will be able to act for you simply because they are an immediate family member.
Are there different types of Lasting Power of Attorney?
There are two types of Lasting Power of Attorney that can be arranged – Property and Financial Affairs Lasting Power of Attorney and Health and Welfare Lasting Power of Attorney (see below for more details).
Both of these require a separate application and a separate registration fee in order for them to be active. It is strongly advisable to arrange both kinds of LPA so your affairs are fully covered. Arranging a Lasting Power of Attorney is the only way to ensure the people you want to will handle your affairs when you can no longer do so.
If a LPA is not in place and you suddenly become mentally incapacitated, you will be registered with the Court of Protection. A deputy will be appointed by the Court with sole power to make welfare and financial decisions on your behalf, including release of funds from bank accounts, sale of property and your medical treatment. It is possible for family members to apply to the Court of Protection to become the deputy but this can take time and money and their powers may still be more limited than under a LPA.
Property and Financial Lasting Power of Attorney
This type of LPA enables close family members or others you appoint (known as the ‘attorney(s)’) to make decisions regarding how your money is managed and how your property and other financial affairs are handled.
Health and Welfare Lasting Power of Attorney
This type of LPA covers healthcare and welfare, including medical treatment and where you live. It can give the attorney(s) power to refuse or consent to treatment on your behalf.
Things to consider when arranging a Lasting Power of Attorney
There are precise requirements to consider in order to set up a valid LPA arrangement. Attorneys must be:
- Over 18
- In good mental health
- Cannot be bankrupt or subject to a Debt Relief Order if appointed to a Financial Decisions LPA
If you would like more than one Attorney you have three options:
- Appoint attorneys to act together so all of them would be required to sign any document
- Appoint them to act together or separately so that only one would need to provide a signature
- Request that attorneys act together on some issues but independently on others
Note that a spouse or partner who owns a home jointly with you cannot have attorney powers to transfer ownership of your share of the property.
How do you arrange Lasting Power of Attorney?
Step 1: Decide whether you’d like to do this yourself or appoint a solicitor to act for you
It is possible to make a LPA yourself. The Office of Public Guardian (OPG) produces all of the guidance and supporting materials to help people make and register a LPA. The forms are designed so that anyone can fill them in, however, once completed it becomes a powerful legal document so it is advisable to seek legal advice. Many solicitors offer a flat fee for arranging a Lasting Power of Attorney.
Step 2: Choose your attorneys
Next, you need to decide who should handle your affairs if you cannot handle them yourself. It must be someone over 18 who you trust absolutely and who is still likely to be in good health in your later years.
It is advisable to appoint at least two attorneys to each LPA. For example, many parents choose to give all of their offspring joint Lasting Power of Attorney. You can also nominate substitutes in case a nominated attorney dies or is no longer able to act for you.
Step 3. Complete the LPA
The LPA document follows a strict format, and you must use the prescribed forms. You must name your attorneys and whether you want them to act together or independently. There is also room to specify restrictions and conditions, for instance, when the LPA should come into effect. Separate documents must be completed for a Health and Care Decisions LPA and a Financial Decisions LPA.
Step 4: Get certification
To be valid, a LPA must also be certified - by you, a solicitor or a person authorised to carry out notarial activities.
Step 5: Register the LPA
The LPA lists up to five other people who are to be notified when the LPA is registered with the Office of the Public Guardian. They have three weeks to raise any concerns.
Step 6: Put the LPA into effect
Before being able to use the completed LPA(s), they need to be registered with the Office of the Public Guardian (OPG). Each LPA requires a registration form and an application fee (currently £110) to be sent to the OPG.
You may be eligible for a reduction in the registration fees if you earn less than £12,000 or exemption if you receive means tested benefits.
Once registered, copies of the LPA(s) can be kept by you, your solicitor and your attorneys for future reference.
Download copies of the Lasting Power of Attorney forms from www.gov.uk
How long does it take to arrange Lasting Power of Attorney?
Once an application for LPA is with the Office of Public Guardian (OPG), it can take around eight weeks to process, though this may vary depending on how many applications the OPG is dealing with.
The time is made up of:
- Three weeks to process applications and issue notices to relevant parties
- Four weeks’ of statutory waiting period during which objections to registration can be made
- One week to despatch final registered documents if no objections are received
You can end or change a LPA if you still have mental capacity even after it’s registered. You can also complain if you are concerned about how your attorney(s) carry out their duties.
Existing Enduring Powers of Attorney (EPA's)
In England and Wales although it is not possible to write new EPA's from October 2007, existing arrangements written before the 1st October 2007 may continue, unless revoked or replaced. They need to be registered with the Office of the Public Guardian, where mental capacity is lost. Visit www.gov.uk for more information.