Lasting Power of Attorney – Overview

Why might it be of interest?
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.

There are 2 types of LPA and you can have one or both:

• Property and Affairs
• Health and Welfare

• £82 to register an LPA – you can get a reduction or exemption if you are on a low income or means tested benefits
• An LPA must be registered before it can be used – this takes up to 20 weeks
• Both types can give authority to deal with all matters relating or specific matters only

Health and Welfare

Can only be used when the donor is unable to make their own decisions

Examples:

• your daily routine, for example washing, dressing, eating
• medical care
• moving into a care home
• life-sustaining treatment

Property and Affairs

Can be used immediately with the donor’s permission

Examples:

• managing a bank or building society account
• paying bills
• collecting benefits or a pension
• selling your home, property, investments

Who can be an attorney?

• Over 18
• Friend or relative
• Professional, eg solicitor
• The attorney does not need to live in the UK or be a British citizen
• Someone you trust, who knows you well and who is capable of managing your affairs
• You can have more than one attorney
• An attorney can be sole, joint (all attorneys must agree) or joint and severally (attorneys can make decisions together or on their own)
• An LPA can specify which decisions are joint or joint and severally

The attorney(s):

• must assume the donor can make decisions; support them making decisions; only make decisions for the donor when it is clear they can’t make the decision
• must act in the person’s best interests
• previous bad decisions do not indicate a lack of capacity
• decisions must be the least restrictive option for the donor
• must consider the person’s past and present wishes
• cannot take advantage of the person to benefit themselves
• must keep all of the person’s money separate from their own

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

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

Witnesses

The forms need to be signed in this order:

• 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

Certificate Provider

The certificate provider is an impartial person who confirms that the donor has capacity and is making the LPA of their own free will.  This can be a friend but not a family member.

Registering the LPA

Forms have to be printed – even if you have completed the form online – for signatures as above and to be sent to the Office of the Public Guardian (OPG).

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

The LPA is valid as soon as the donor and certificate provider have signed but can’t be used until registered.

Mistakes

• Do not use tippex to correct
• If you cross something out the donor and attorney’s must initial it
• It is probably better to make the correction and reprint the form
• Mistakes can delay the registration of the LPA
• You may have to pay again