Lasting Power of Attorney in the UK
When individuals get to the position where they are no longer able to make decisions for themselves it is imperative that they have an attorney appointed in order to make these decisions for them. Lasting Power of Attorney also referred to as LPA's are used in order for someone to appoint their own attorney.
Lasting Power of Attorney for Property and Financial Affairs:
This attorney can have the following powers; paying bills; dealing with an individual’s income and selling and transferring assets. There can be restrictions placed on the attorney as to what they can and cannot do.
Lasting Power Attorney for Health and Welfare:
An attorney who has been appointed under a Health and Welfare Lasting Power of Attorney is able to make decisions on your behalf relating to your personal health and welfare. These decisions can include for example what type of care you have and where you receive it. They can also include such things as whether or not you receive life sustaining treatment. A Health and Welfare Lasting Power of Attorney has a separate section specifically for this last point. Lasting Power of Attorney can only be used once they have been registered with the Office of the Public Guardian and until that time remain dormant.
How old should you be before you have a Lasting Power of Attorney?
Anyone who is over the age of 18 and has mental capacity is able to draft a Lasting Power of Attorney. We have acted for many individuals who are in their late 20s early 30’s who have felt that they wish to have attorneys appointed as well as those who are much older. The truth is you can never be too young to have a Lasting Power of Attorney, unless of course you are under the age of 18.
Who is able to act as my attorney?
You can choose anyone you wish to act as your attorney. This can be a family member, friend or a professional person. As long as you trust this person or persons and they are over the age of 18 and at the time of signing the Lasting Power of Attorney are not bankrupt they are able to act as your attorney. You are able to have more than one attorney appointed as well as appointing replacement attorneys in case one or more attorneys are unable to act. If you choose to have multiple attorneys acting for you, you can choose how they act. This can be together or independently which means that you can restrict the way in which decisions are made. Your attorneys must always follow the guidelines set out in the Mental Capacity Act when making decisions and acting for you. They should always act in your best interests and take into consideration your requirements and wishes when making these decisions. It is important the attorney also takes practical and appropriate steps to help you the donor (the individual making the LPA) make your decisions.
Your attorney is not allowed to take advantage of the position of authority they have been given and must always act in your best interests. They are not allowed to be seen to make decisions that benefit them over you in any way.
How do I make a Lasting Power of Attorney?
There are two types of forms for drafting Lasting Powers of Attorney. One is for property and financial affairs the other is for health and welfare. Here at Inheritance Solutions UK we are able to draft both types of Lasting Power of Attorney for you. This would normally involve a home visit where one of our advisors would come and sit with you to talk about your wishes and the way in which you want to your Lasting Power of Attorney drafted.
You will need to appoint a certificate provider, often we act as certificates providers for our families but you can also appoint another independent person who has known you for at least two years. A doctor or another professional can also act as a certificate provider. Your attorney or someone related to your attorney cannot act as your certificate provider. You must also have someone who is to be informed of your application to register the Lasting Power of Attorney. If you do not choose anyone to be informed then you have to have an additional certificate provider. We are also able to act as your person to be informed.
How do I register a Lasting Power of Attorney?
Your Lasting Power of Attorney needs to be registered with the Office of the Public Guardian also known as the OPG. We will register your Lasting Power of Attorney for you if you ask us to draft it on your behalf; this is all included in our fixed fee. The Office of the Public Guardian is the government body that registers lasting powers of attorney. This includes dealing with any objections someone may have for registering a Lasting Power of Attorney as well as any issues whereby an attorney is not exercising their powers correctly.
What does the Office of the Public Guardian do?
- decide whether a person has the capacity to make decisions for themselves
- make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
- decide whether a Lasting Power of Attorney is valid
- remove attorneys who fail to carry out their duties
- hear cases concerning objections to registering lasting powers of attorney
The Court of Protection
If someone does not have a valid Enduring Power of Attorney or Lasting Power of Attorney and loses mental capacity, the Court of Protection may appoint someone to act as their deputy to make decisions on their behalf. If a family member or friend wants to become someone's deputy it can be a very lengthy and time consuming process. The Court of Protection will assess each case on an individual basis and then will place it in a band depending on the amount of time and supervision that is required on each case. This has a direct impact on the fees charged for a deputyship.
As with most things in life prevention is always better than cure and so in order to avoid the court appointed deputy or family member having to apply through the Court of Protection to become someone's deputy it is much easier, cost effective and less time consuming that this is done through a Lasting Power of Attorney.
If you would like any further information or like to arrange an appointment for someone to come in to see you with no obligation please call us on 0800 028 5119 and talk to one of our advisors.