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Lasting Powers of Attorney - Factsheet

1. The Basics

A Lasting Power of Attorney is a legal document which allows you (the donor) to appoint one or more people (the attorneys) to make important decisions on your behalf. Unlike an Ordinary Power of Attorney, a Lasting Power of Attorney (LPA) continues should you become unable to make your own decisions.

An LPA attorney can only start to make decisions after the document has been registered at the Office of the Public Guardian. Whilst this does not have to occur immediately after the LPA is created, the registration process currently takes 3 months from start to finish and so most people will not leave matters outstanding, but will apply for registration immediately.

However, whether the LPA is registered or not, you can continue making your own decisions for as long as you have the capacity to do so.

There are two types of Lasting Power of Attorney:

  • Financial Decisions LPA – gives the LPA attorney power to deal with your property and financial affairs. Examples of tasks that an LPA attorney could carry out for you in this capacity include collecting your pension, benefits or other income, paying your bills, completing tax returns and buying and selling property.
  • Health & Care Decisions LPA – gives the LPA attorney powers in respect of your current and future welfare and medical treatment. Examples of tasks that your LPA attorney could carry out for you in this capacity include deciding if it is time for you to move into residential or nursing care, arranging your meals, buying your clothes and consenting to, or refusing, life sustaining treatment on your behalf.

Creating a LPA is an opportunity to put in writing your personal wishes about what you want to happen should your mental capacity deteriorate, whilst leaving you free to continue making your own decisions for the present time.

Any person over the age of 18 with full mental capacity can be your attorney, although for a Financial Decisions LPA your attorneys must not be bankrupt or become bankrupt during your life.

People often choose their spouse or civil partner, children, other relatives or close friends. It is also possible to choose a professional person such as a solicitor.

You can appoint more than one LPA attorney and, if you do this, you will need to decide whether they all need to sign everything, all of the time (which may or may not be practical), or whether to allow them to act independently of each other.

Due to the importance of the decisions you are making, you must choose an independent person to complete a certificate to show that you understand the nature and scope of the LPA.

The Certificate Provider (the independent person) can be someone you have known personally for at least two years or someone with the appropriate professional skills such as a solicitor, your doctor or a social worker.

The Certificate Provider must sign the certificate to confirm that, in their opinion, you:

  • understand what a LPA is
  • understand the powers that you are giving your LPA attorney
  • are not being pressured tricked or put under duress by anyone to make it

The Certificate is a vital part of the LPA forms, and without it the document cannot be registered with the Office of the Public Guardian.

Your LPA Attorney cannot draft a Will for you, so you should ensure that you take care of this personally. Furthermore, they cannot access your existing Will or your Medical records unless you have given your express permission to do so under the terms of the LPA.

Your Attorneys cannot vote on your behalf, and they are also subject to strict rules about the gifts which they can make with your assets.

You will also have the option of creating your own restrictions and conditions which you wish your attorneys to be subject to.

Under the current legislation, specific forms must be used to set up a LPA.

For a Financial Decisions LPA the relevant form is the “LP1F” and for a Health & Care Decisions LPA the relevant form is the “LP1H.”  

We will draft the appropriate LPA for you in accordance with your instructions. Once we have sent you the initial draft for approval, please read the information contained within the LPA’s carefully.

In particular, please ensure names, addresses and dates of birth are accurate.

The LPA is divided into the following sections:

[Any missing information required that was not obtained during our initial discussions will be highlighted – please provide this information as soon as possible in order that we can complete the documents with a view to printing the Original Version for formal execution]

The donor

Your own details will be entered into section 1

The attorneys

The details of the attorneys you are appointing will be entered into this section.

How should your attorneys make decisions?

Section 3 provides for the appointment of a sole attorney or two or more. In the event that you have appointed more than one attorney, you have the power to decide whether you wish those attorneys to only make decisions on your behalf together, or whether they should be capable of doing so independently of each other. 

Choosing “jointly” will mean that your attorneys will only be able to make decisions together,

while choosing “jointly and severally” will mean that they could act either together or independently.

In the majority of cases, we would recommend “jointly and severally”

Replacement attorneys

In section 4 you have the option of appointing a “replacement attorney.”   A replacement attorney is someone that can be appointed to act on your behalf only if the attorneys you have already appointed are unable or unwilling to act.     

Having at least one replacement attorney means that, should this situation  arise, your LPA will continue to be usable, as the replacement attorney can act instead. This will save you the inconvenience and expense of having another LPA drafted.    

When choosing replacement attorneys, the same criteria apply as for your first choice of attorneys.

When can your attorneys make decisions?

Section 5 of the Financial Decisions LPA permits you to grant a LPA but prevent its use by your attorneys until a future date when you have lost mental capacity. This can have unintended consequences. The Mental Capacity Act prescribes that capacity is time and event based, with a ‘fresh’ assessment having to be made upon each occasion capacity is called into question. This can result in the attorneys having to demonstrate a lack of capacity each and every time they attempt to use the power.

If the rational against allowing the power to be available from the outset of registration, is to prevent its premature use,  it would be better to instead postpone registration and only authorise the attorneys to file the same with the Court if and when they believe your mental capacity has deteriorated – you will be notified of the application and will have the opportunity of challenging it should you consider the attorneys have ‘jumped the gun’. However, as stated above, the registration takes 3 months and hence this approach, at a time when your attorneys possibly need to intervene and assist you, leaves them in a ‘no man’s land’ for a 1/4 of the year when they cannot act on your behalf.

In these circumstances, it is our recommendation that you do not choose the second option to only permit the powers use when you are deemed not to have capacity.

Please note that no corresponding provision exists in the Health & Care LPA as it is never possible to delegate your welfare decision when you do have capacity – i.e the Health LPA can only ever be used by an attorney when you lack capacity to make a specific issue yourself.

Life sustaining treatment

Section 5 of the Health & Care LPA considers whether you wish for your attorneys to have the power to give or refuse consent to life-saving treatment. It is highly advisable that you discuss with your attorneys, close relatives and healthcare professionals whether or not you wish to grant your Attorneys this power.

People to notify when the LPA is registered

Section 6 consider which people you wish to be told that an application to register your LPA is being made.

The is available as an added safeguard against the possibility that you have been forced or pressured into registering the LPA.

Once an application to register the LPA is made your “people to notify” will be served with notice immediately by the Court, and will have a period of three weeks in which to object to the registration. Accordingly, any person named in this section should know you well enough to identify any possible issue that should cause them to object. Examples of people you may wish to appoint to this position include relatives, close friends or a healthcare worker whom you know reasonably well.           

Should the notified persons not raise any objections during the notice period then the LPA will be registered shortly thereafter, and the attorneys will acquire the power to act on your behalf. 

There are two main reasons when you may wish name people in this section:

  1. The first is a tactical approach when you intend for example to appoint one child to the exclusion of another child due to family problems. Serving notice upon the excluded child makes them officially aware of your decision and removes their future argument or ability to claim that you had, unknowing to them, been taken advantage of by the child you have appointed. Similarly, it frustrates their ability to argue that when you created the LPA you had already lost capacity as the natural retort would be to query, why, in such circumstances, they had not informed the Court there and then of their concerns?
  1. The second occasion is when you have decided to grant an LPA but have decided to postpone its registration. As such a power may only be presented for registration a number of years later when you may have started to loose capacity, the ability to have people notified of the attorneys action may serve as an added degree of protection to you if the relationship between you and the attorneys has dramatic altered for the worse.

Overall we are not minded to recommend the use of this section in any other circumstance.

Preferences and instructions

Section 7 gives you the option of imposing preferences and restrictions upon your attorneys, which will, in the case of guidance merely set out matters you would like them to consider (but is not legally binding) and in the case of instructions, will  be binding upon them (i.e. they will have no choice but to follow such instructions.)

Filling in these boxes gives you the opportunity to specify guidance you would prefer them to  consider and instructions which they must follow when performing all or some of their duties.

Examples of instructions which you may wish to consider including are as follows:-

“My attorneys must not make any investment without obtaining professional advice”

“My attorneys must not sell my home unless, in my doctor’s opinion, I can no longer live independently”

“My attorneys must maintain a minimum balance of £………. in my current account”

“My attorneys must reinvest all interest from each year’s investments into the next years ISA allowance”

“My attorneys must not make any gifts”

     

However, it is generally inadvisable to attempt to restrict the powers of your attorneys in this way. As your circumstances change over time then your financial needs may also change, and in that case restricting the powers of your attorneys may ultimately prevent them from acting in your best interests.   

Furthermore, the reality is that anybody whom you grant an LPA to will always be in a position to abuse that power, no matter how tightly you attempt to restrict that power. 

Accordingly, it is advisable that you only appoint attorneys who you trust implicitly, and to grant such attorneys unrestricted power on the presumption that they will not seek to abuse that power. 

Occasionally, circumstances do warrant us to advise you to include a number of specific authorities for your Attorneys. These include:

  1. When the attorney has not been involved with and or has no knowledge of any Will you have made, the following express authority can be extremely useful:

“I wish my attorney(s) to have access to any testamentary documents (including my confidential file(s) of instructions) made by me”

  1. If there is a potential for medical litigation to be undertaken upon your behalf at any time, the following should be included:

“I wish my attorney(s) to have access to all confidential medical notes held by a GP, Medical Practitioner  or Medical Institution”

  1. In addition it may be necessary to consider the payment of your attorneys.

It is important to note that you do not have to pay your attorneys (although attorneys are entitled to recover their reasonable expenses). Furthermore, just because you decide to pay one Attorney, it does not mean that you have to pay all of them.

However, should you reach an agreement with your Attorney(s) regarding payment of one, or all, of them, then it is advisable that you record the details of any such agreement within this section of the LPA, in order to avoid confusion later on.

Whenever a professional attorney is appointed, it will be common for the attorney to insist upon a ‘charging clause’ being inserted into the LPA so that no issue arises in the future over their ability to charge their full professional fees for work undertaken:

“I wish my professional attorney(s)  to charge and be paid their professional fees (in accordance with their published rates  from time to time) for all work done in exercising the authority which I am granting to them by this power”

  1. If you habitually make charitable donations then we would recommend the following clause is added:

“My attorney(s) must continue to donate to charities that I have supported or for which I have set up standing order payments:

  1. Finally, recent cases before the Court have raised ‘concerns’ as to whether a LPA authorises the continuing use of a discretionary management scheme undertaken by various banks. The following wording is suggested for an LPA in such circumstances, but caution is required as:
  1. The matter is currently subject to a test appeal case ; and
  2. There is no guaranttee that a specific bank may not insist upon its own wording and will not accept that proposed by the Court. It is therefor incumbant upon you as the Donor to obtain prior clearance from your Funds manager, should this be relevant to you, before agreeing the final wording set out here:

“My attorney(s) may transfer my investments into a discretionary management scheme. Or, if I already had investments in a discretionary management scheme before I lost capacity to make financial decisions, I want the scheme to continue. I understand in both cases that managers of the scheme will make investment decisions and my investments will be held in their names or the names of their nominees”

Whilst you can enter anything in this section which you feel would help your attorneys when making decisions on your behalf, it is often more desirable to deal with such matters by way a an informal side letter (though the same carries no legal authority whatsoever.

Please note that should your guidance or instruction depart from the most common examples we have given, we CANNOT guarantee that the Court, upon registration, will not reject the same and dismiss it as running contrary to the ethos and spirit of the LPA legislation. You cannot obtain express clearance in advance for a particular preference or instruction you may wish to add and costly appeals may arise with the Court and or a full Court hearing to determine the issue at hand should the Court insist upon its removal and you disagree.

Your legal rights and responsibilities

This section draws to the attention of the donor, the attorneys and the certificate provider their respective legal duties and obligations under the legislation

Sections 9, 10 and 11

These sections are the respective declarations by each of the parties to the LPA – donor, certificate provider and attorneys that they understand their legal duties and obligations and their consent to being a party to the LPA

Your legal rights and responsibilities

This section draws to the attention of the donor, the attorneys and the certificate provider their respective legal duties and obligations under the legislation

These sections are the respective declarations by each of the parties to the LPA – donor, certificate provider and attorneys that they understand their legal duties and obligations and their consent to being a party to the LPA

This section is for signature by the donor

A certificate provider must not be:

  • a member of your family or your attorney’s family
  • a business partner or employee of you or your attorney
  • your attorney (even if appointed by a previous EPA or LPA)
  • the owner, director, manager or employee of a care home in which you live, or a family member of any of those people
  • a director or employee of a trust corporation if you appoint that trust corporation (rather than an individual) as your attorney.

The Certificate Provider must discuss the LPA with you to make sure that you fully understand the effects of signing it. This discussion should not take place in the presence of your attorneys.

If the Certificate Provider has concerns that you are being put under pressure, or that you do not fully understand its effects of the LPA, they should not sign the LPA and should raise their concerns with the Office of the Public Guardian.

Typically, your solicitor at Gregory Abrams Davidson Solicitors will be able to act as your Certificate Provider and, subject to your agreement, will complete and sign this section of the form on your behalf.

This section is your attorneys confirmation that they understand their roles and responsibilities under the LPA, and consent to the terms of the LPA.

A copy of this section must be signed by each attorney or replacement attorney that you are appointing under the LPA.

The signature of each attorney or replacement attorney must be witnessed by someone over 18, who will then provide their signature, full name and address in the relevant sections at the bottom of the page. To make the process as secure as possible, you cannot act as a witness to one of your attorney’s signatures.

3.General Guidance for LPA Attorneys

The crucial thing to bear in mind at all times as an LPA attorney is that your key objective is to do what is in the  best interest of the Donor.

Even after the LPA has been registered you should assume that the donor has the mental capacity to make their own decisions, until circumstances convince you otherwise. You should never attempt to prevent a donor from making a decision he is mentally capable of making, simply because you feel that his decision is unwise. 

You should only ever make decisions for the donor on the grounds that:-

  1. a) They are incapable of making the decision themselves; or
  2. b) They have asked you to make the decision on their behalf  

The Donor has the right to complain to the Office of the Public Guardian if they are unhappy with your decision-making, and in these circumstances you may be asked to justify your decisions.

We recommend that you provide each of your attorneys with a copy of this guidance.

It is important to verify whether the LPA gives you the authority to make decisions on your own, or only to do so jointly with one or more other attorneys. 

It is also important to note that you, and any other attorneys, are bound by the preferences and instructions listed by the donor in section 7 of the LPA.

Furthermore, the LPA does not entitle you to:-

  • make a Will on the donor’s behalf
  • access the donor’s existing will (unless you have expressly provided a condition enabling you to do so.)
  • vote on the donor’s behalf
  • obtain Medical Records (unless you have expressly provided a condition enabling you to do so.)

Finally, you should bear in mind that a Financial Decisions LPA does not give you the authority to make decisions about the donor’s Health & Care, while a Health & care Decisions LPA does not give you authority to make decisions regarding the donor’s financial affairs.

Only if you have been appointed as an attorney under both types of LPA (requiring two separate applications), can you ever be considered to have authority to make decisions regarding all the relevant aspects of the donor’s life.

It is advisable that you keep records of your discussions with other attorneys, so that, should any decisions you have made ever be called into question, you can demonstrate why such decisions were made.   

If, when making decisions with other attorneys, you feel that the other attorney is not acting in accordance with their roles and responsibilities, you should raise your concerns with that attorney. If you are still not satisfied that the relevant attorney is conducting their duties appropriately, then you should contact the Office of the Public Guardian.     

Similarly, if your conduct is challenged by another attorney then you should contact the person making the complaint and attempt to resolve the situation. If the outcome of your discussion is unsatisfactory, then contact the Office of the Public Guardian for advice.

You are entitled to claim reasonable out-of-pocket-expenses incurred during the performance of your duties as an attorney, provided that they are directly in proportion to the duties undertaken and the size of the Donor’s estate.

Examples of expenses you may claim for include postage costs, telephone calls and any necessary travel expenses.   

Whenever your Solicitor is appointed as an attorney, for the avoidance of doubt and as a “re-confirmation” that we would charge for acting when operating under the LPA a professional charging clause will be added to Section 7  ‘Instructions ‘ (please note above comments concerning Section 7 Preferences and Instructions)

Once the LPA has been completed you can either register it with the Office of the Public Guardian immediately, or wait to do so until you believe that the time is right for your LPA attorney to begin managing your affairs. 

If you do not register the LPA immediately, and do not lose mental capacity at any point, then it may never need to be registered. 

However, as already highlighted above, the potential problem with not having the LPA registered immediately is that it takes time for the registration procedure to be completed. During this delay the attorney has no power to act under the LPA. This can cause problems if immediate actions are needed, such as payment of care home fees. In these circumstances it may become necessary for your attorney to apply for an order of the Court of Protection, so that your affairs can be dealt with until the LPA is registered.

Another reason for immediate registration is that if any errors are discovered, you will still have mental capacity to rectify them and create a valid LPA.

Once the decision has been made to register the LPA, you can register it yourself or, in some situations, your LPA attorney can register it on your behalf. If your attorney does apply for registration of the LPA, then the Office of the Public Guardian will notify you of this, to ensure that you are aware they have done so and are in agreement.

In order to register the LPA, the completed LP1F and or LPA1H form must be sent to the Office of the Public Guardian, along with form sections 12-15 of the respective form.

Sections 12-15 confirms the details of you, your attorneys and the person(s) who need to be notified that registration is taking place (if any). It also asks for confirmation of whether it is you, or one of your attorneys that is registering the power.

In the event that you have people to be notified within the LPA document, then contemporaneously with filing the application with the Office of the Public Guardian the appropriate forms will also need to be prepared for serving on the people to be notified.

Finally, unless you are entitled to a fee exemption, the application must also be accompanied by a registration fee. This fee currently £82.00 per LPA, unless you are entitled to a remission (discount.) 

In the event that you are eligible for a fee exemption or remission, then the application must also include a completed copy of form LPA120, which will provide details of any such entitlement. If you believe you may qualify, please request this form from us. Please note that the same is required to be supported with original supporting documentation.

As part of the service provided by Gregory Abrams Davidson Solicitors, we will complete all of the application forms upon your behalf and submit the correct paperwork to the Court.

Once your application has been submitted to the Office of the Public Guardian then the LPA will usually take up to three months to complete. Hence, we recommend in the majority of cases that the registration process is commenced immediately the LPA has been executed by all parties.

It is, however, important to note that, should it consider fit, then the Court of Protection has the power to prevent an LPA from being registered. This is a safeguard to help prevent abuse of the LPA system.

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