Having a lasting power of attorney (LPA) set up can be invaluable if someone loses their mental capacity and is unable to make their own decisions anymore. It can give a person who knows them and who they trust the authority to act on their behalf on particular issues, such as paying their bills or deciding where they should live.
However, there are quite a few different types of power of attorney and the process of setting one up can seem quite complicated. To help, we explain what power of attorney is, what the different types are, who can get a lasting power of attorney and how to go about setting it up.
Power of attorney is the legal authority for someone to make decisions or act on someone else’s behalf when they are no longer able or willing to do so themselves.
The person giving up this power is known as the “donor”. The person who is given this power is known as the “attorney”.
There are three different types of power of attorney:
1. Ordinary power of attorney.
An ordinary power of attorney is a legal document which allows someone to temporarily make decisions on behalf of another person in relation to their financial and property affairs while they are briefly unable to. For example, it could be used if someone is in hospital, on holiday for a long period of time or simply finding it hard to get out and about and therefore needs help with things like paying their bills. The person temporarily giving up their rights – the “donor” – must have mental capacity at all times and be able to make decisions. If they lose their mental capacity, the ordinary power of attorney will no longer be valid; a lasting power of attorney will then be needed instead.
The donor can either grant their attorney the power to deal with all of their financial and property affairs or only some specific parts, also known as a limited power of attorney. For instance, they could allow their appointed attorney to deal with their bank account for them, but not allow them to do anything related to their home or investments. Limited powers of attorney should be drawn up carefully so that everyone involved is clear on exactly what the attorney does and doesn’t have the power to deal with.
2. Enduring power of attorney (EPA).
Enduring powers of attorney are what existed before they were replaced by lasting powers of attorney in October 2007. You cannot make a new enduring power of attorney anymore; you should instead use a lasting power of attorney. But if you or someone you care for made an enduring power of attorney before 1 October 2007, it can still be registered, and if it has already been registered it will likely still be valid.
EPAs come into effect when the person loses their mental capacity, or would like someone to act for them. EPAs only cover property and financial matters, not issues relating to someone’s health and welfare. If you wish to establish a power of attorney that covers someone’s health and welfare decisions when they lack mental capacity, you should instead make a health and welfare lasting power of attorney.
3. Lasting power of attorney (LPA).
A lasting power of attorney is a legal document that allows a donor to appoint one or more attorneys to make decisions or act on their behalf. It comes into force if, at some point in the future, the donor loses their mental capacity or decides they no longer want to make their own decisions. It is usually in place for a long period of time, unlike an ordinary power of attorney which is only in place temporarily.
Lasting powers of attorney (LPAs) were introduced in October 2007. Before this, people needed to use enduring powers of attorney (EPAs) instead (see above).
Yes, there are two different types of lasting power of attorney. It is possible to get just one of these two types of LPA, or to get both. This is different to the previous enduring powers of attorney, which only covered property and financial affairs.
The two types are:
1. Property and financial affairs LPA.
A property and financial affairs LPA allows someone to make decisions and act on another person’s behalf in relation to issues like:
- Buying or selling their property.
- Accessing their bank, building society or other accounts.
- Collecting their benefits, pension or tax credits.
- Paying their mortgage or bills.
- Managing their tax affairs.
- Investing their money.
It is possible to make a property and financial affairs LPA that only covers certain of these issues, and doesn’t give up power around others. For instance, the donor may choose to allow their attorney(s) to deal with their bank accounts for them, but not allow them to do anything related to their home or investments. If this is the case, the LPA should be drawn up carefully so that everyone involved is clear on exactly what the attorney does and doesn’t have the power to deal with.
The LPA must be made while the donor still has mental capacity. Unlike a health and welfare LPA, it is not necessary for the person making it to have lost their mental capacity and be unable to make their own decisions before it can be used; if the donor wishes, it can come into effect as soon as it is registered with the Office of the Public Guardian. If this is not what is wanted, the LPA should clearly state when it should come into effect. It must always include the authority for the attorney to make decisions on the donor’s behalf once they have lost their mental capacity though.
Attorneys acting on someone else’s behalf under a property and financial affairs LPA must keep accounts covering what they have done, and ensure that the other person’s money stays entirely separate to theirs. The donor (or their solicitor or relative if they do not have mental capacity) can request regular updates on what is being spent and how much money they have left so that there is extra protection in place.
2. Health and welfare LPA.
Health and welfare LPAs allow someone to make decisions and act on another person’s behalf in relation to a range of different issues including:
- Where they live, for instance whether they are moved into a care home.
- Their day-to-day life and routine, such as what clothes they wear, how they are washed, what food they eat, what social activities they take part in and who they do or do not have contact with.
- Any medical care or healthcare treatments, including life-sustaining treatment if special permission is granted for this.
It is possible to make a health and welfare lasting power of attorney that only covers some of these issues, and doesn’t give up power around others. If this is the case, the LPA should be drawn up carefully so that everyone involved is clear on exactly what the attorney does and doesn’t have the power to deal with.
A health and welfare LPA must be made while the person granting the rights still has mental capacity. Unlike a property and financial affairs LPA, it can only be used when the donor has lost their mental capacity and is therefore unable to make their own decisions.
Anyone aged 18 years or older who has mental capacity (i.e. has the mental ability to make their own financial and medical decisions) can set up a lasting power of attorney. You do not need to live in the UK or be a British citizen.
Nobody can set up a power of attorney for you without your permission. You may get assistance from a friend, relative, advisor or solicitor to set it up, but you must still be the person giving the instructions and authorisation and must be fully aware of and understand what is happening.
It is sometimes assumed that only people currently needing a lasting power of attorney can or should set one up. Although setting up an LPA is particularly important if you have been diagnosed with an illness which may in the future affect your ability to make your own decisions, if you wait until you no longer have mental capacity it is already too late; legally you must have the ability to make your own decisions when you establish it. So try to set it up well in advance of it being needed.
You can appoint a single attorney, or multiple attorneys if you would like. You might consider selecting your spouse, a relative or a friend. Or you may want to choose a professional, such as a solicitor, instead.
All of your attorneys must be aged 18 or over, and they must have the mental capacity to make decisions. Even though the word “attorney” makes it sound like a legal role, they do not need to be a lawyer or have any legal training or experience at all. They do not need to live in the UK and they do not need to be a British citizen. If you are setting up a financial and property LPA, you cannot select someone as an attorney if they have been declared bankrupt or if they are subject to a Debt Relief Order.
Bear in mind that, should you lose your mental capacity, the person or people you select will have a great deal of power over either your health and welfare or your finances and property, depending on which LPA you set up. This means that you should think very carefully about who you pick and make sure that you know them well and trust them to act in your best interests. Think about how well they manage their own health and finances and whether you think they would do a good job if put in charge of yours. It is also worth considering whether they would be happy to take on a role like this, and carry it out willingly.
Setting up a lasting power of attorney means that, should you lose your ability to make decisions for yourself, your interests will be looked after by people who care for you and that you trust. This should give you and your friends and family some peace of mind, knowing that you are well-prepared.
Many people assume that their next of kin, such as their spouse, parent or child, will automatically be able to make decisions for them about their care and medical treatments, and control their financial affairs, if they are no longer able to. But without a lasting power of attorney, this isn’t the case.
If you do not have a lasting power of attorney in place and you lose your mental capacity, your friends or family will need to apply to the Court of Protection to gain the authority to look after these things for you. This is a process that can take a long time and cost a lot of money in legal fees and other expenses. The Court of Protection can make orders about particular health, welfare, financial or property decisions themselves. Or they can decide whether or not to appoint someone, such as your friend or relative, as what is known as a “deputy” to make decisions on your behalf. It is rare for the Court of Protection to appoint deputies to deal with medical or welfare issues though, usually leaving it up to those individuals providing you with care and medical treatment to make decisions for you instead. Unlike with your attorney, you cannot choose who you would like to be your deputy yourself.
It is therefore a good idea for everyone to set up a lasting power of attorney for themselves, and encourage those around them to do the same. Losing mental capacity is something that can happen to anyone, at any time. And it is particularly crucial to set one up if you have been diagnosed with, or are at higher risk than others to develop, an illness that would prevent you from making decisions in the future. These could include dementia, brain injuries, mental health problems or a drug or alcohol addiction.
If you want to set up a lasting power of attorney, you should first choose one or more people you trust to make decisions on your behalf to appoint as your attorney(s). This is a very important decision, so think about it carefully. See "Who can act as an attorney?" above for further details about who could be eligible for the role.
If you select more than one attorney, then you will also need to decide how you would like them to make their decisions. The options that you need to pick between are as follows:
- Your attorneys make their decisions either separately or together. This allows them to make decisions either on their own or with each other. This can also be known as jointly and severally.
- Your attorneys must always make their decisions together. This means that, for every decision, they must all agree or they cannot make the decision. This can also be known as jointly.
- Your attorneys must make some particular decisions jointly, and others they are able to make jointly and severally.
You can also nominate other people as replacements for your selected attorney or attorneys if they are no longer able to act for you at some point in the future.
Once you have selected who you would like to be your attorney(s), there are some forms provided by the government that you need to complete. These can be found on the GOV.UK website. There are different forms for setting up a health and welfare LPA and a financial and property LPA. If you would like to set up both, you will need to complete each form separately but it is still usually easiest to set them up at the same time.
You can either fill in paper copies of the forms by hand or complete them online. In either case, hard copies of the forms will need to be signed by you as well as by your attorney(s), witnesses and what is known as a ‘certificate provider’. This is someone who confirms that you are making a lasting power of attorney of your own free will, that you have not been put under any pressure to sign it and that you understand what is happening. There are quite specific rules about who can act as an attorney, a witness or as a certificate provider, so it is worth checking these and making sure you have the right people available to complete the form.
If you get stuck when filling in the forms, the best place to start is by taking a look at the guidance notes provided by the Office of the Public Guardian to see if they answer your queries. You could also contact them directly for additional advice and support on 0300 456 0300 or by emailing customerservices@publicguardian.gov.uk. A friend, relative or an advisor from Citizens Advice may also be able to provide you with assistance. If you are still having trouble, you would just like someone to check you haven’t made any mistakes or if your case is particularly complex, you may also consider consulting with a solicitor or requesting them to fill in the form on your behalf. Bear in mind that this can be quite costly though, and it is worth comparing the fees of a few different solicitors first, as they can vary quite a bit. It is normal for solicitors to charge around £350-£600 per LPA, with some offering discounts if you do more than one LPA at once or if you and a spouse do them together.
Next, in order for your lasting power of attorney to be valid, it is crucial that you register it with the Office of the Public Guardian. You can register it yourself, or one of your attorneys can register it for you. This can be quite a lengthy process, taking up to twenty weeks, and sometimes even longer if there are mistakes on the application. There is an application fee for registering your LPA. See our section ‘How much does it cost to set up a lasting power of attorney?’ below for more details.
When you want to register your lasting power of attorney, you should first notify the particular people that are listed in your LPA application as "people to notify" or "people to be told". They will then have a short window of time in which to raise any concerns they have with the Office of the Public Guardian. This step is included to help protect you against fraud, and to make sure that you are not pressured into making an LPA against your wishes. There is a form to fill in, called an LP3. If you are completing the forms online, this form will be created and filled in for you. If not, it is available for download from the GOV.UK website.
As soon as you have sent your forms notifying the relevant people, you should complete the registration form, known as an LP2. Once the LPA has been registered, you will receive the original document back for you to keep in your records.
In order to be valid, the lasting power of attorney must be registered. The application fee for registration is £82 per lasting power of attorney. That means if you want to set up both a financial and property LPA and a health and welfare LPA, it will cost £164. If you make a mistake on the form and want to correct it, you can change it and apply again within 3 months for £41. You can pay these fees either by credit or debit card or by sending them a cheque in the post.
If you receive certain means-tested benefits or have a low income, you may qualify for a reduction or exemption from these fees. Take a look at the GOV.UK website for full details.
If you want to make changes to your lasting power of attorney once it has been registered, and you still have mental capacity, you need to contact the Office of the Public Guardian on 0300 456 0300 or customerservices@publicguardian.gov.uk. If you want to remove one of your attorneys, known as “revoking an attorney”, you will need to send them a written statement called a “partial deed of revocation”. If one of your attorneys changes their name or address, you should notify the Office of the Public Guardian of the change, and you will need to provide them with proof i.e. a marriage certificate. If you wish to add a new attorney, then you will need cancel your original LPA and create a brand new one. You should notify all your attorneys about any changes like these that you make.
If you wish to cancel your lasting power of attorney, for instance because you no longer want it or you want to make a new one, then you can you do this at any time if you still have mental capacity. If it has not been registered yet, then simply destroy the completed forms. If it has already been registered, then contact the Office of the Public Guardian on 0300 456 0300 or customerservices@publicguardian.gov.uk to request that they remove your LPA from the register. You will need to send them a written statement called a “deed of revocation”. You should notify all your attorneys that you have cancelled your lasting power of attorney.
If you are an attorney and you wish to stop acting as one, which is known as “disclaiming an attorneyship”, you can stop anytime. Just complete the notification form LPA005, available on the GOV.UK website, and send it to the donor and the Office of the Public Guardian, as well as to any other attorneys on the LPA. If there is a replacement attorney listed in the LPA, they will take over. If there is not, then the LPA will end.
There are some circumstances where the lasting power of attorney ends automatically, for instance if the donor or the only attorney dies, or if the attorney loses their mental capacity. If the donor and attorney are married or in a civil partnership, the lasting power of attorney ends automatically if this is dissolved or annulled. If it is a property and financial affairs LPA, then it also ends automatically if either the attorney or the donor becomes bankrupt or is subject to a Debt Relief Order.
The Court of Protection also has the power to cancel a lasting power of attorney if they decide that the attorney is not acting in the donor’s best interests, for instance if they make excessive gifts to themselves or others from the donor’s funds.
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