Lasting Power of Attorney
It should be noted that the information contained in this section relates to English Lasting Power of Attorney and there are differences between the English and Scottish system.
There may come a time when, because you are incapable of managing your property and financial affairs or personal welfare, you will need someone to do this for you.
You can formally appoint a friend, relative or professional to hold a lasting power of attorney that will allow them to act on your behalf. Lasting power of attorney (LPA) in England and Wales has no legal standing until it is registered with the Office of the Public Guardian. A lasting power of attorney is a legal document that lets you appoint someone you trust as an ‘attorney’ to make decisions on your behalf.
It can be drawn up at any time while you have capacity, but has no legal standing until it is registered with the Office of the Public Guardian.
A registered LPA can be used at any time, whether you have the mental ability to act for yourself or not.
You can create two types of LPA:
- Property and Affairs LPA
- Personal Welfare LPA
Property and Affairs LPA
A Property and Affairs LPA allows you to choose someone to make decisions about how to spend your money and the way your property and affairs are managed.
Personal Welfare LPA
A Personal Welfare LPA allows you to choose someone to make decisions about your healthcare and welfare. This includes decisions to refuse or consent to treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when the LPA is registered and you lack the capacity to make the decisions yourself.
How many people should you appoint and whom?
You may not be able to check up on the attorney yourself if you become incapable, so it may be a good idea to appoint more than one person to help prevent abuse of the responsibility. Choose people you can trust to act in your best interests. You should consider how well they look after their own financial affairs and whether you can trust them to use your money to meet your needs.
Depending on the complexity of your property and financial affairs it may be a good idea to get advice from a solicitor before making an LPA.
You can get further advice from the Office of the Public Guardian about making an LPA.
Registering an LPA
Either you or your attorney can apply to the Public Guardian to register your LPA. The application can be made at any time after you have made an LPA.
Before the application to register the LPA is made, the people named as being entitled to receive notification of the application must be told by the person who wants to register it.
The Public Guardian will give notice that the application has been received to:
- You as the donor
- The attorney or attorneys
Your relatives will not be notified of the application to register the LPA unless you have named them as being persons who should be given notice.
Anyone who has been notified can object to the LPA being registered.
Once the LPA is registered it continues indefinitely. The LPA can be registered by the attorney after you have lost capacity.
Lasting power of attorney replaced the enduring power of attorney ( EPA) on 1 October 2007. A person given power under an EPA before 1 October 2007 can still use it and apply to have it registered. This person has a duty to apply to register the EPA as soon as they believe that you are becoming or have become mentally incapable of making financial decisions for yourself.
If you have an unregistered EPA and still have the capacity to make decisions for yourself, you can make a Personal Welfare LPA to run alongside it.
Lasting power of attorney (LPA)
You can cancel your LPA if you have the mental capacity to do so. If there is a dispute about whether your LPA has been cancelled, the Court of Protection has the authority to make a decision.
A Property and Affairs LPA is revoked if you or your attorney becomes bankrupt; bankruptcy does not terminate a Personal Welfare LPA.
Enduring power of attorney (EPA)
When can an Enduring Power of Attorney be made?
It is no longer possible to create a new enduring power of attorney however previously you could grant the power at any time provided you were over 18 years of age and mentally capable of understanding what the Enduring Power of Attorney was.
How did I appoint an Attorney?
It was advisable to seek legal advice as careful consideration was to be given to the range of powers you wished to give to your attorney. These should also have been agreed with your attorney.
Did I have to give my Attorney full powers over all my affairs?
No. You could limit the power to certain parts of your affairs, for example, you may have wished them to handle your money but you might have wanted to exclude the sale of your dwelling house from their power.
When did the power take effect?
It took effect as soon as the attorney signed unless you had included any conditions or restrictions about when the power should commence.
Can I still change my mind at any time?
Yes. You can cancel or amend the Enduring Power of Attorney at any time while you are mentally capable. For example if the attorney you have chosen dies or becomes incapable or no longer wishes to act on your behalf you will need to appoint a new attorney.
To cancel a registered EPA you must show the Court of Protection:
- that you understand who the attorney is and what powers they have
- that you understand the effect of the cancellation
- why the EPA needs to be cancelled
What happens if I become mentally incapable?
If your attorney(s) have reason in the future to believe that you are becoming mentally incapable of managing your affairs they will have to apply to the High Court (Office of Care and Protection) for registration of this power. You will receive notification of the attorney’s application to the court. The court may question the attorney’s handling of your affairs and may cancel his power at any time if it is not satisfied that the attorney is acting in your best interests.
An EPA is revoked if you or the appointed attorney becomes bankrupt.
THE FINANCIAL CONDUCT AUTHORITY DOES NOT REGULATE LEGAL SERVICES.