A Lasting Power of Attorney (LPA) allows you the donor to appoint someone you trust to make decisions in the future if you are unable to understand or decide for yourself.
The Text Book - Lasting Powers of Attorney
Craig Ward, Baron of Lundie MSc one of our Partners wrote the Law Society’s textbook on Lasting Powers of Attorney (2016) now in it’s 3rd edition.
Types of LPAs
There are two types of Lasting Power of Attorney
Property and Financial Affairs LPA
Health and Welfare LPA
Although these are separate documents we would usually advise clients to make both of them together.
Businesses would be advised to make a Business LPA.
Financial LPAs are similar to Enduring Powers of Attorney. They grant authority to act on your behalf concerning your property, managing your bank account, paying bills or making other similar financial decisions.
Whereas a Health LPA grants authority to your attorneys to make health, welfare, treatment and care decisions. This might be deciding if you need a certain kind of treatment, if you need an operation, what sort of care you may need whilst at home, whether or not you should move into a care home. It also allows your attorneys to make decisions where your life may be at risk.
A Heath LPA may also be used to challenge a local authority or hospital if they wish to deprive you of your liberty, so they can provide treatment or care to you. If you are not able to understand or to decide for yourself, your attorneys can object on your behalf.
In order to make an LPA, you must have sufficient mental capacity at the time of making one. If there are any concerns about this, it may be in your best interests that your GP is involved in making your LPA, acting as your certificate provider. A certificate provider is a further safeguard added by the Mental Capacity Act requiring a solicitor, GP or someone who knows you well, to sign to say there are no problems or issues with you making an LPA.
Registration of an LPA
Once you and your attorneys have signed your LPA, you or your attorneys may decide to register the LPA straight away or to wait. Registration is with the OPG.
Your LPA is not usable until it has been registered by the OPG. Once registered if this is a financial LPA, unless you have said otherwise on the LPA, it may be used straight away. Unlike a Health and Welfare LPA which can only be used once you are no longer able to decide.
The registration process involves us completing the application forms and sending these with your LPAs to the OPG, notifying the person named on your LPA to be told you are registering your LPA, and managing any arising issues.
If the person notified has any concerns they should bring these to the attention of the OPG. Registration takes a minimum period of six weeks, with registrations occasionally taking up to 10 weeks.
Once an LPA has been registered, the OPG cuts through it the words VALIDATED OPG.
How your attorneys must act
Your Attorneys may only make decisions which you are unable to make yourself. This means that your attorneys must be aware of your level of understanding, together with how you’d usually make decisions.
Where your attorneys are making decisions they must act in accordance with the Mental Capacity Act. Meaning they must make your decisions in your best interests, helping you where appropriate to make decisions yourself.
Your attorneys must also follow the Mental Capacity Act Code of Practice, in particular chapter 7.
If you have more than one attorney they may act either jointly, or jointly and severally. Jointly means that your attorneys must always agree on their decisions. Whereas jointly and severally means attorneys may make decisions independently of each other, usually having decided themselves how this will operate.
Where there are problems or concerns about how an attorney is acting, this may be brought to the attention of the OPG. The OPG will investigate and decide whether your attorney should continue or be removed.
There are certain things which attorneys may not make decisions upon, these include making serious medical decisions or making a will for you. If you have not made a will and you lose mental capacity, a statutory will maybe created on your behalf taking instructions from your attorneys.
Your attorneys are also prevented from giving away your money as gifts except in the following circumstances; customary occasions such as; birthdays, Christmas or other religious events. The size of the gift must be in a proportion to your overall assets.
Lasting Power of Attorney Clauses
Most LPAs do not contain any clauses or only essential clauses. These clauses are included as part of our LPA package. Such as access to the donor’s will, delegations to professional brokers or accounts checked.
Above is only a brief outline of Lasting Powers of Attorney.
The Much Hon. Craig Ward, Baron of Lundie, Solicitor MSc BA(Hons) TEP