As a result of our extensive experience of dealing with the concerns of elderly clients and their families, The Attwaters Jameson Hill Wills, Trusts & Probate team has put together this brief guide to answer some of the questions commonly asked by our clients about Lasting power of Attorney.
There are two types of Lasting Power of Attorney, or ‘LPA’:
Personal Welfare LPA
The Personal Welfare LPA is designed to cover decisions such as where you are to live, your day-to-day care and possibly even whether life-sustaining medical treatment should be given or refused.
You can limit the areas of personal welfare that you wish to delegate. A Personal Welfare LPA can only be used if you lose mental capacity – it cannot be used by your attorneys whilst you are still capable of making decisions about your own health and personal welfare.
Property & Affairs LPA
The Property & Affairs LPA enables you to appoint one or more attorneys to make decisions purely relating to money and property.
This can include running your bank accounts and savings accounts, decisions about making or selling investments and selling your property.
The person(s) you nominate as your attorneys potentially have very wide powers to deal with your assets and must therefore be trustworthy.
You can specify in the document that it is not to come into force until sometime in the future when certain circumstances arise. For example, when a doctor gives a written statement that you are unable through disability to manage your affairs.
You can, if you wish, state that the LPA is only to apply to certain of your property and affairs or you can impose other conditions.
The Property & Affairs LPA can be used by your attorneys (if you wish) when you are still mentally capable of managing your own affairs.
The Attwaters Jameson Hill Wills, Trust & Probate team will be able to advise you and tailor your LPA to best fit your personal circumstances.
The principles that your attorneys must follow
Whilst your attorneys potentially have very wide powers under both types of LPA, they cannot simply do whatever they like. They must follow the principles of the Mental Capacity Act 2005.
There are five key principles:
- Your attorneys must assume that you can make your own decisions unless they establish that you cannot do so
- Your attorneys must help you to make as many of your own decisions as possible. They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been taken without success
- Your attorneys must not treat you as unable to make the decision in question simply because you make an unwise decision, or one that your attorneys would not necessarily consider sensible themselves
- Your attorneys must make decisions that they believe to be in your best interests when you are unable to make the decision in question
- Before your attorneys make the decision in question or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
The ‘best interests’ principle is a fundamental one. Your attorneys must take into account all relevant circumstances in deciding what it is your ‘best interests’. This includes, if appropriate, consulting you and others who are interested in your welfare in order to try and identify your views.
There is a Mental Capacity Act Code of Practice which contains guidance about the above principles. Attorneys should have regard to the Code of Practice when acting under an LPA.
The Code of Practice can be obtained via the Office of the Public Guardian (tel: 0300 456 0300 or www.gov.uk/). Alternatively, attorneys should contact the Attwaters Jameson Hill Wills, Trusts & Probate team if they are unsure what they can or cannot do in any given situation.
How to make a Lasting Power of Attorney
Consulting a solicitor, such as the Attwaters Jameson Hill Wills, Trusts & Probate team, is the best way to make sure any LPA is properly set up and drafted in a way that it is in your best interests.
In order to be valid both the Property & Affairs LPA and the Personal Welfare LPA need to be in a prescribed form. Both types of LPA must be filled in, signed and dated in a prescribed order.
The LPA contains your personal details (referring to you as ‘the Donor’), the personal details of your chosen attorneys and, if you decide to appoint more than one attorney, how you want your attorneys to act for you; jointly, jointly and severally or jointly in relation to some things and jointly and severally in relation to others.
Any restrictions and conditions you wish to put in place should appear in the LPA. These are legally binding on your attorneys and you therefore need to give careful consideration to what, if anything, you include here.
Restrictions and conditions that are unworkable in practice can ultimately result in the whole LPA being invalid.
There is also a section for you to give your attorneys written guidance. Whilst guidance may assist your attorneys to act in your best interests, it is not legally binding upon them.
Finally, you may give details of up to five people to be told about the fact you are making an LPA. This is for your own protection and is designed to give the named persons the opportunity to raise any objections or concerns. You cannot therefore name your attorneys as people to be told about your LPA.
The LPA contains a certificate that must be completed by an independent person (again, not one of your chosen attorneys) straight after you have signed the declaration. The purpose of the certificate is to verify that at the time of making your LPA you fully understand the significance of it and that no undue pressure or fraud is involved.
In order to be able to act as a certificate provider the independent person must fulfil certain criteria which are set out in the LPA. Someone with specialist skills, such as the Attwaters Jameson Hill Wills, Trusts & Probate team, may act as your certificate provider.
The LPA contains your Attorney’s personal declaration that they understand their role and responsibilities. An Attorney must be at least 18 years old and, in the case of a Property & Affairs Attorney, must not be bankrupt.
Both you and your Attorney(s) need to sign your respective parts of the LPA in the presence of an independent witness. This is someone who sees your LPA being signed, and who then signs your LPA themselves to confirm that it was signed in their presence.
Your certificate provider or a person to be told can act as your witness and your Attorney’s witness. Your Attorney may not act as your witness, although attorneys can witness each other’s signatures. A solicitor may act as your witness, as well as witness your Attorney’s signature.
Once the LPA has been filled in, signed by all parties and witnessed as necessary, the next step is to register it with the Office of the Public Guardian.
Both types of LPA must be registered with the Office of the Public Guardian before they can be used by the Attorney(s). You or your attorneys can do this at any time though – the LPA does not have to be registered straight after it has been made, although there are advantages in doing so.
The main advantage in registering an LPA shortly after it has been made is that if in the future it is needed, it can be used by the Attorney straight away. Otherwise, there is likely to be a delay of some 10-12 weeks whilst the registration process is underway. This can cause loved ones stress and anxiety as a result of not being able to access your money in order to maintain you. This may be on top of what they are already going through, if, for example, you are suddenly incapacitated through a stroke or other medical emergency.
Whether you register your own LPA or your attorneys do it for you, a form needs to be completed and a fee (currently £82.00) may need to be paid to the Office of the Public Guardian. Whether the fee is payable or not depends upon your financial circumstances at the time the LPA is registered.
Notices will also need to be sent to the ‘people to be told’. The ‘people to be told’ are then given a statutory waiting period of 6 weeks to raise any concerns or objections. If the OPG does not receive any objections after this time, your LPA can be registered. It usually takes a further 2-3 weeks for the OPG to return the LPA duly registered.
You may cancel your LPA at any time, even after it has been registered with the OPG, provided that you have the mental capacity to do so. Furthermore, your LPA will come to an end if it can no longer be used. This may be because a sole Attorney dies or can no longer act for you and there is no replacement Attorney named in the document.
If you already lack capacity to manage your own affairs at this point and are therefore not in a position to make a new LPA, further advice would need to be sought by your loved ones as to what to do next.
We must stress that this is only intended as a thumbnail guide, rather than the comprehensive, tailored legal advice that our Wills, Trusts and Probate team supplies as a matter of course to our clients.
Attwaters Jameson Hill’s Wills, Trusts & Probate specialists are available in all our offices and can arrange to visit you in your own home, nursing home or hospital if preferred. To speak to one of our experts, contact us at firstname.lastname@example.org or call 0330 221 8855.