Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal arrangement which allows you to appoint a person (or persons) who, if needed, will make important decisions in the future on your behalf.

What is an LPA?

An LPA can offer you the reassurance of knowing that if such a time should come, the person making those decisions will be someone you trust. It is a way of appointing a person (known as an attorney) to make decisions on your behalf in circumstances you specify.

There are two types of LPA you can apply for:

  • The property and financial affairs LPA. This allows the attorney to make decisions on your behalf about your property and finances.
  • The health and welfare LPA. This allows your attorney to make decisions on your behalf about where you live and the treatment you receive.

In order to apply for one or both types of LPA, you must be over 18 and have mental capacity to make your own decisions. On the application forms you can specify when you want the attorneys to be able to start taking decisions from.

Who can I choose as an attorney?

An attorney can be anyone over the age of 18, but must not have been declared bankrupt for the property and financial affairs LPA . Most people choose family members, and it must be someone you trust as they will be making decisions on your behalf. Though you could also choose a professional like an accountant or solicitor.

Attorney's are committing themselves to act in accordance with the following principles:

  • Acting in your best interest
  • Considering your wishes (past and present) when making decisions
  • Not taking advantage of you for their own benefit
  • Keeping your and their money separate

If they fail to act according to those things then the LPA could be cancelled.

How do I create an LPA?

You must read the information in an LPA very carefully before filling it in. You can do this yourself, but sometimes, given it's complex legal nature, you may want to get a solicitor to do it for you. This will incur additional costs.

You need to get several signatures before submitting this form, firstly someone who signs the 'certificate of capacity' which states that you have mental capacity to make an LPA. This can be a professional or someone you have known for two years but does not benefit from the LPA. Secondly, each attorney must sign to agree that they will act as your attorney and that they understand the role. A witness must also be present.

Once completed the forms must be sent in paper Office of the Public Guardian (OPG) where it will be considered.

What happens if I already have an Enduring Power of Attorney (EPA)?

The EPA has been replaced by the LPA which means you can no longer make an EPA. If you have an existing valid EPA that was made before the 1st October 2007, it should still be valid and can be used. An EPA only covers decisions relating to wealth, property and care decisions, you will need to make a health and welfare LPA in addition to your EPA.

What happens if a loved one has lost their mental capacity but hasn't made an LPA?

Once someone can no longer make their own decisions (once they have lost mental capacity) you cannot obtain an LPA on their behalf. You can apply to the Court of Protection regarding a particular decision. However, if there is an ongoing need to make decisions on your loved one's behalf then you can ask the Court of Protection to appoint you as a 'deputy'.

This is a costly process, costing £400, or £900 if there needs to be a hearing. There is also a £100 'deputy assessment' fee payable to the Office of the Public Guardian.

A deputy is usually a family member or close friend and once appointed they can make decisions about that person's personal welfare, property and/or financial affairs. If there is no one suitable or willing to act as a deputy, the court can appoint a professional from a panel.

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