Lasting Power of Attorney

Why might it be of interest?
While you can complete the forms online or use a solicitor I think it would be helpful to understand in a bit more detail about the process as well as who should be an attorney and how they will work together. Knowing a bit more might help you decide what to apply for, who to appoint as an attorney, etc.

If your young person has capacity to understand what they are doing in making you their Attorney then you can have their Lasting Power of Attorney. The concept can be explained in simple terms using pictures and short sentences and with someone to support them – whatever the young person needs to help them understand.

You should not assume that your young person cannot understand enough to be able to grant you their power of attorney. But you do need to be sure they understand – and part of the process includes a declaration from an independent person (could be a family friend) that the young person does, indeed, understand enough. If you go to a solicitor they will want to ensure your young person understands what they are doing via a short series of questions and usually without you present.

You can apply for an LPA online or use a solicitor.

If you want to know more about capacity, what it means and how it is established I have a short document about it in the Mental Capacity Act folder under Social Care.

 

An LPA is a legal document that a person (the donor) creates during their lifetime to enable another person/people (the attorney) to manage their affairs entirely or to help with some aspects and can be effective from the time it is registered or specify some point in the future.  It goes without saying that the person who has your LPA should be someone you completely trust.

There are 2 types of LPA:

• Property and Financial
  • eg managing bank accounts, investments, pensions, selling property, tenancy agreements, speaking on the donor’s behalf, contracts etc
• Health and Welfare
  • eg making life sustaining decisions, organising a care home for the donor, managing the donor’s daily routine – washing, dressing, eating, etc

The person who has your LPA should not have any issues with the GDPR and organisations refusing to deal with them or disclose information as they are legally acting on your behalf with your permission to do so.  However, not all organisations are as knowledgeable as they might be and front line staff may not know much at all.  Many (larger) organisations will have a department that deals with LPAs, deputyships, etc.  Just be aware of this.

Both types must be registered before they can be used and cost £82 each when applied for online.  Forms must be printed for signature and sending to the Office of the Public Guardian (OPG).  Registration takes up to 20 weeks.

Property and Financial LPA

• This can come into effect as soon as it is registered
• The attorney is acting with the donor’s permission – they cannot act without permission
• They may be acting when the donor has lost capacity or while the donor still has capacity but needs some help – always with the donor’s consent

Health and Welfare

• Only comes into effect when the donor has lost capacity
• An attorney cannot help or make decisions if the donor is unable to carry out their own affairs but is deemed to have capacity
• Can specify whether medical professionals or attorneys make decisions
• You will probably need to get medical verification that a donor has lost capacity before you can act on their behalf

Both types of LPA can give authority to deal with all matters relating or specific matters only.

You can complete an LPA application online or you can use a solicitor.  If your affairs are not simple and straightforward I recommend you consult a solicitor.  What would make your affairs not simple and straightforward?  Some examples:

• There is any doubt at all about the donor’s capacity to consent to the LPA
• Complex investments, pensions, etc
• Property share with other investors
• Business affairs
• Any doubts about the donor’s willingness to give power of attorney

All details on the LPA application must be correct: do not use tippex to correct and any crossings out must be initialled – ideally correct and reprint the form.  Use blue or black ink.

Think about what you want your LPA to do before you start the application and have all the necessary details about yourself and your potential attorneys before you begin.

Choosing Attorney(s)

• Your attorney(s) should be someone you fully trust
  • Friend, relative, professional – eg a solicitor
  • You can have more than one attorney – but ensure they will be able to work together
• They must be over 18
  • And of good character
• They do not need to live in the UK or be a British citizen but do consider the practicalities here
• An attorney can be sole (a single attorney), joint (all attorneys must agree) or joint and severally (attorneys can make decisions on their own)
• An LPA can specify which decisions are joint or joint and severally

Attorney(s):

• Must assume the donor has capacity to make decisions in the first instance
• Must help the donor make decisions
• Only make decisions on the donor’s behalf when all possible steps have been taken to enable the donor to make the decision for themselves
• Can’t presume lack of capacity because the donor has made unwise decisions
• Must make decisions that are the least restrictive for the donor
• Must act in the donor’s best interests
• Must consider the donor’s past and present wishes
• Cannot take advantage of the donor to benefit themselves
• Must keep all of the donor’s money separate from their own

Capacity

An individual must have mental capacity to make an LPA.  They need to be able to:

• understand the information needed to help them make the decision, even when the information is given in a way which meets their needs, for example, using simple language or by sign language
• retain that information
• use or weigh the information to help them make the decision
• communicate their decision in any way that shows they have understood

If capacity can be in any doubt an assessment must be carried out and recorded in detail.  If you don’t do this and the LPA is challenged in the future you may find that you cannot prove that the person had capacity at the time of giving the LPA.

For your young person you might choose a time of day when they are relaxed and ready to engage with you.  You might start a conversation about money, where it comes from, how they like to spend it, then explain that you already look after it and ask if they would like you to continue to look after their money.  A few minutes later you might ask them to explain what you have just told them.  There can’t be a definitive list of questions or way to approach this as it will vary so much from young person to young person.  Spend as much time as you need and have someone take notes as you go.  Ideally, the Certificate Provider (see below) should be present.

The notes should be given to the donor and other interested parties.  The aim here is to ensure that the LPA can’t be challenged in the future on the grounds that the donor did not have capacity.

Please read our document about Mental Capacity Assessments for more information about capacity and making capacity assessments.

Mencap have an easy read document about being a donor (the person giving the LPA) which you might like to use to guide you through the process to determine if your young person has the capacity to make this decision:  https://www.mencaptrust.org.uk/guides-lasting-power-attorney

How many attorneys?

You can have a single attorney or more than one attorney.  There are pros and cons for each option.  If you have more than one attorney make sure they are able to work together.

Sole attorney:

• one person making decisions on their own
• no arguments
• problems if the attorney can’t or won’t act – the LPA could fail

Joint attorneys:

• More than one attorney
• Must act together
• Could lead to arguments if they don’t agree which could delay or stop decisions being made
• If one attorney can’t or won’t act no decisions can be made – the LPA fails
• Potential practical issues if they don’t live near each other

Joint and several attorneys:

• Can act together or apart
• Could still lead to problems if there isn’t agreement hence it is important that you choose attorneys who can work together
• If one attorney can’t or won’t act the other attorney(s) can continue so the LPA won’t fail

Replacement attorneys:

• You can have a list of replacement attorneys who can either be added in an order that you specify or all at once
• A replacement attorney would be used when one of your original attorneys can’t or won’t act
• Or you can wait until none of the original attorneys can act before replacements step in
• The default for replacement attorneys is to be a joint attorney so you may need to specify differently if this is not what you want

Information for the application

You will need to know all your details, including:

• Full name
• Other names you are have been known by (first and surnames)
• Names your assets are in if different from above

For example I might have a bank account in the name of Mrs Susan Smith, another named Sue Smith, I might have been married and divorced, adopted.

You will need to know the details of your attorneys, witnesses and certificate provider:

• Full name
• Address – always check with postcode finder
• Date of birth

You will have the option to notify other people that you are doing an LPA – this is not necessary simply personal preference.

What the attorney can do

You can specify what your attorney(s) can do as a preference or an instruction:

Preference:

Something the attorney(s) should keep in mind but they do not have to follow

Instruction:

The attorney(s) must follow instructions

Do think carefully about whether something is a preference or instruction.  If it is an instruction it could make it difficult for the attorney(s) to carry out.

Your instructions/preferences must not conflict with your decision for attorneys to act jointly or jointly and severally.  And they must be legal.  For example, you cannot express a preference that someone helps you to die.

Property and Financial:  you may want your attorney(s) to take over managing all your financial matters or you may want them to manage some matters and not others.  If your attorney is not taking over all your financial affairs be very clear about what they can and can’t do and what is a preference or an instruction.

Health and Welfare:  as previously stated this can only come into effect when the donor loses capacity.  However, donors can temporarily lose capacity but regain it and their Health and Welfare LPA would be active while they didn’t have capacity.  An example might be if they had a stroke and for a while were unable to make decisions about their health care but later recovered enough to be able to make their own decisions again.

If you want your attorney(s) to make life sustaining decisions consider whether it is fair or reasonable to ask them to make those decisions and whether they can cope with their decision.  In some instances it might be better to request that medical professionals make the final decision, albeit in consultation with your attorney(s).

Try not to use instructions for health and welfare LPAs as it could be difficult for your attorney(s) to carry out.  However, you may have a number of preferences about your health and welfare.  For example, you could put as a preference that you remain in your own home with carers; if you are in a vegetative state you want your life support turned off if a 2^nd opinion agrees; you may have religious or cultural preferences.

Loss of capacity

While it is fine for a mental capacity assessment to be carried out informally for the initial LPA application a medical professional would have to make the decision whether the donor had lost capacity and therefore their Health and Welfare LPA becomes active.  A doctor, most likely the donor’s GP, would need to write a letter to confirm that the donor has lost capacity.

If the Property and Finance LPA specifies that it only comes into effect when the donor has lost capacity this could potentially lead to delays in dealing with their financial affairs as most institutions would want medical verification.

Signing the LPA

There is a specific order which must be adhered to:

• Donor signs first, immediately followed by their witness
• Certificate provider signs to confirm capacity (does not require a witness)
• Attorney(s) sign, immediately followed by their witness
• Replacement attorney(s) sign, immediately followed by their witness

Ideally everyone should sign in the presence of a witness and each other.

Witnesses must be over 18 and have known the donor for over 2 years (friend or family) or be a relevant professional.  Witnesses can’t be one of the attorneys, a replacement attorney or an employee of an organisation that is your attorney or replacement attorney.  Donors and attorneys can’t witness for each other.

Certificate Provider

The certificate provider is an impartial person who confirms that the donor has capacity to make the LPA and are not under pressure to do so.

A certificate provider must be someone who has known the donor personally for over 2 years or a relevant professional.  They cannot be:  an attorney or replacement attorney; a member of the attorneys’ families; an unmarried partner; a business partner or one of the attorneys’ business partners; an employee or one of the donor’s attorney’s employees; the owner or manager of a care home where the donor lives or a member of their family; anyone running or working for an organisation appointed as your financial attorney.

If there are continuation sheets they must be signed off by the donor.  If you make a mistake it must be crossed through and signed by the donor and attorney(s).  It may be better to make changes and reprint the document.

Registering the LPA

• Apply for registration with the Office of the Public Guardian (OPG)
• If you have an income of more than £12,000 it will cost £82 per LPA
• If your income is less than £12,000 you need to complete form LPA120 for a 50% reduction
• If you are on means tested benefits you can apply for a full fee exemption – form LPA120
• You will have to prove your income / benefits

Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH

However, the LPA is valid from the moment it has been signed by the donor and the Certificate Provider.  Should the LPA not be sent off for registration immediately and the donor loses capacity in the interim the LPA is still valid and if the donor is unable to sign the registration form the attorney(s) can sign.

The OPG will check the application and submit it for registration.  The donor and attorneys will be notified and there is a 4 week waiting period before the registration is completed.  The overall time for registration is currently between 16-20 weeks.

You have the option to notify other people about the LPA but this is optional.

Copies

• You will always need an original or certified copy
• Never send off the original document or let it out of your sight
• If the donor has capacity they can certify copies

An LPA can be cancelled at any time.  An attorney can’t change a donor’s will.

Do you need an LPA?

You may not need an LPA.  For example, if your all your accounts and financial matters are all jointly held the other person will continue to be able to access them.  However, you should consider what would happen if both off you lost capacity.

If you have sole name accounts, investments, assets, etc no-one else will be able to access these if you are unable to do so.

If you are a homeowner and the only owner of your home to sell another person would need your LPA or apply for a deputyship.

Only an LPA is legal.  A letter from the donor won’t do and it doesn’t matter if you are the donor’s spouse or parent or child.

DWP Appointee:  If a person is not able to manage their welfare benefits another person, usually the parent in the case of a disabled young person, can be their DWP appointee.  As a DWP appointee you can only manage welfare benefits and deal with the DWP on their behalf – not other finances or financial processes.  However, financial institutions all have their own rules so you may find that some will let you manage further financial affairs and others will not.

When a young person in receipt of benefits is approaching 16 years the DWP should contact you to discuss appointeeship.  The DWP need to determine whether the young person can manage their own benefits and if you are a suitable person to manage them on their behalf.  I haven’t ever heard of this being a problem for families.  You will be issued with a certificate which will give you permission to manage all their benefits.

Other

• If the donor or their attorneys move you should inform the OPG if possible
• Ideally, keep proof of their original address in the form of a bill, for example, from the original address
• Definitely use a solicitor if there are any ifs and buts
• When done with a solicitor the donor will be seen alone with the solicitor to enable the solicitor to be sure the donor has capacity and is willing to make the LPA
• A solicitor would typically take 2-3 hours to make an LPA so expect to pay around £360-£540 plus the cost of the LPA although charges can be considerably higher – do check
• Most solicitors will offer a short assessment (20-30 minutes) free of charge
• LPAs do not go out of date

Recommendations

While it can be tempting to do an LPA online and not use a solicitor do consider if there are any complexities at all – LPAs can be challenged by interested / affected parties so don’t leave yourself open.

Read the advice on the government website:  https://www.gov.uk/power-of-attorney

You can download the entire guide.

Form LP1F is the form you complete to make an LPA for financial decisions.  Use form LP1H for health and Welfare decisions.  The forms have a lot of information about correctly making your LPA so do take the time to read through before starting an application.

You can download all the relevant forms here:  https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney

Read about mental capacity if there is any doubt about the donor’s capacity to give power of attorney and remember to keep notes about the assessment.