Lasting Powers of Attorney
A Lasting Power of Attorney or LPA allows you the donor to appoint someone you trust (an attorney) to make decisions in the future if you are unable to understand or decide for yourself.
Types of LPAs
There are two types of Lasting Power of Attorney
Although these are separate documents we would usually advise clients to make both of them together.
A Property and Financial Affairs LPA’s is 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 and Welfare 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 Health and Welfare 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 someone such as a solicitor, GP or someone who knows you well, to sign to say there are no problems or issues with you making an LPA.
Making an LPA
There is a fixed fee for making both your LPA’s of £650 plus VAT. If partners or a husband and wife want to both make LPAs the fee is £750 plus VAT. This includes advising you and your attorneys on how your LPA’s may be used, what is meant by acting in your best interests and making assessments of your mental capacity, drafting both your LPA’s including adding any conditions, restrictions or guidance where necessary and ensuring these documents are correctly made.
Craybeck Law will advise you on the following points when making your lasting power of attorney. Which clauses you may want to put into the preference or instructions boxes. Types of financial clauses which you can include in a lasting power of attorney. Advising on drafting your memorandum of wishes. Making sure the relevant provisions in chapter 7 Mental Capacity Act Code of Practice are applied. Ensuring the appropriate sections of the Code of Practice are applied when choosing your attorneys. Explaining the relevant accounts rules regarding lasting powers of attorney. Conducting an audit of your financial / life situation to ensure you are suitably advised when creating your lasting power of attorney.
Before a LPA can be used it needs to be registered with the Office of the Public Guardian (OPG). This registration process takes between 6 to 12 weeks on average. The OPG charges £82 per LPA registered. So to register two LPA’s it costs £164.
A remission or exemption may be claimed off this fee. A 50% remission may be claimed for individuals whose gross income is less than £12,000 per annum. Where someone is in receipt of certain welfare benefits, they may claim an exemption off the OPG fee.
A certificate provider is an individual required as part of the LPA creation process. This person confirms the individual making the LPA (the donor) has sufficient mental capacity to make an LPA, also that there is no fraud, pressure or undue influence at the time the LPA is made. A certificate provider may either be an individual who is known the donor for two years or more. Alternatively it may be a professional such as a GP or a solicitor. On occasions a GP is asked to act as a certificate provider as this person best knows the donor.
Registering your 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 Property and Financial Affairs LPA, unless you have said otherwise on the LPA, it may be used straight away, even before you lack capacity. 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 LPA’s 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 or the Court of Protection. Registration takes a minimum period of six weeks, with registrations occasionally taking up to 12 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. A copy of this Code of Practice may be downloaded from www.justice.gov.uk/guidance/protecting-the-vulnerable/mental-capacity-act/index.htm.
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.
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. On customary occasion such as; birthdays, christmas or other religious events. The size of the gift must be in a proportion to your overall assets.
Please be aware, you may cancel your LPA at anytime you so wish for what ever reasons, providing you have sufficient understanding to do so. Where there are problems or concerns about how an attorney is acting, this may be brought to the attention of the OPG.
Craig Ward of Lundie one of our solicitors wrote the book: Lasting Powers of Attorney: A Practical Guide (4th Edition) (2019) The Law Society.
Call Craybeck Law
Call Craig Ward of Lundie, solicitor one of the partners at Craybeck Law on 0800 254 5262 and contact us for a further conversation about making your deputyship or statutory will application.
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