At April King Legal we have helped thousands of clients to make a Lasting Power of Attorney over the years. Here, we answer some of the most common questions we get about this document. Click here to visit our main Lasting Power of Attorney information page.
Q: What is a Lasting Power of Attorney?
A Lasting Power of Attorney allows you to nominate someone you trust to manage your affairs, should you lose mental capacity. This might happen for example because you develop dementia, have a stroke or suffer a brain injury.
Q: Who can make a Lasting Power of Attorney?
Anyone aged 18 or older who has mental capacity can make a Lasting Power of Attorney. Since anyone can lose mental capacity at any age, we strongly recommend that all of our clients have this document in place, not just the elderly.
Q: What is ‘mental capacity’?
If you have mental capacity, you can make decisions for yourself. The law says that you lack mental capacity if you can’t make a decision for yourself because of some impairment of, or disturbance in, functioning of the mind or brain.
Someone is deemed to be incapable of making decisions for themselves if they cannot:
- understand the information relevant to the decision,
- retain that information,
- use or weigh that information as part of the process of making the decision, or
- communicate their decision (whether by talking, using sign language or any other means).
Some people have the capacity to make some decisions for themselves, but not others.
Q: What is a ‘Donor’?
A Donor is the person making the Lasting Power of Attorney. If you make a Lasting Power of Attorney, you will be the Donor.
Q: What is an ‘Attorney’?
The term ‘Attorney’ sounds like it is something to do with being a lawyer – but it isn’t. An Attorney is simply someone who you nominate in advance to make decisions on your behalf if you lose mental capacity. They could be your partner, your adult child or a close friend etc.
What are the different types of Lasting Power of Attorney? Do I need both?
There are two types of Lasting Power of Attorney – one for finance and property, and the other for health and welfare. It is up to you whether you complete one or both.
Most people will complete the finance and property Lasting Power of Attorney as a minimum. This is because if you lose mental capacity, your partner or family have no automatic right to manage your finances. Joint accounts can be frozen and your partner may find themselves unable to draw any money to pay bills or care fees.
The Finance and Property Lasting Power of Attorney allows your Attorneys to:
- manage your bank or building society account
- pay your bills
- collect your benefits or a pension
- sell your home
It can be used once it has been registered with your permission, even if you still have mental capacity. This can be quite useful as it allows you to give someone the power to help you out with your finances and affairs – for example, if you are away on holiday or have to spend some time in hospital.
The Health and Welfare Power of Attorney allows your Attorneys to make decisions about:
- your daily routine, eg washing, dressing, eating
- the medical care you receive
- whether you move into a care home
- whether you receive life-sustaining treatment
It can only be used once you have lost mental capacity.
Q: Do I need to choose the same Attorneys for both types?
No – you can, if you want to, choose different Attorneys for each document. You can also state for each document whether your Attorneys should act:
- Jointly – they must agree on everything or they won’t be able to act
- Jointly and severally – they can meet and discuss matters, but they don’t have to
- Jointly for some matters, jointly and severally for others – they must agree on the matters you’ve decided need a joint decision, but can act independently for any other matters
You can also restrict their powers regarding certain matters if you want to.
Q: Who can I choose as my Attorney(s)?
Generally speaking, anyone aged 18 or over with mental capacity can be your attorney.
Attorneys do not need any special legal or financial qualifications. A lot of people will choose family members to be their Attorneys.
You could ask, for example:
- Your husband, wife, civil partner or partner
- Another family member – sister, brother, son, daughter etc
- A close friend
- A professional such as an accountant or solicitor
Be aware that professionals will usually charge for their services.
The most important consideration when choosing your Attorneys is to select people who know you well, and who you trust to act in your best interests.
If you are making a Finance and Property Lasting Power of Attorney and you don’t have anyone who can act for you, you can choose a trust corporation to act (who again will charge for their services).
Q: Is there anyone who can’t be an attorney?
Yes – someone who is bankrupt or has a debt relief order can’t act as an attorney on a Finance and Property Lasting Power of Attorney. They can still act as your attorney on a Health and
A person who is on the Disclosure and Barring Service’s barred list also cannot act as an attorney – unless they’re a family member and they’re not getting a fee to be your attorney. They will break the law if they do.
Q: How many Attorneys can I have?
In theory you can have as many as you want. However, it becomes chaotic and unworkable if you choose too many Attorneys – especially if you insist that they act jointly.
Most people will choose two or three Attorneys, and then specify replacement Attorneys, should one of their choices be unable to act.
Q: Should I let my Attorneys act jointly and severally?
As mentioned above, there are a number of ways that you can instruct your Attorneys to act for you.
- Jointly and severally
- Jointly for some matters, jointly and severally for others
If you instruct them to act jointly, they must agree on all matters. If they cannot agree, they cannot act. This can be problematic, especially if there are a number of Attorneys.
On the flip side, if you instruct them to act jointly and severally, each attorney has the right to act independently of the others. They could, for example, make an investment or put your house on the market, without consulting the other Attorneys.
Of course, Attorneys must always act in your best interests. If they do not, the Court of Protection can step in. Further, you should be choosing people as your attorneys who you trust completely.
The option of ‘jointly for some matters, jointly and severally for others’ is a popular choice. It allows you to say, for example, that they can make day to day finance decisions but must agree on investment decisions or the sale of property.
However, you must be careful if you select this option as there are consequences if one attorney becomes unable to act. You should speak to a lawyer about nominating replacement Attorneys. You will likely be surprised how this works in practice. For example, if you appoint three Attorneys and require that they make decisions ‘jointly’ then if one becomes unable to act, the others cannot make any decisions. If you have specified e.g. two replacement Attorneys, both of these will be appointed, and the original Attorneys will have no say on the decisions that you’ve said need to be made jointly.
If you appoint just one attorney and specify two replacements, if the original attorney becomes unable to act the two replacements will step in but will have to act jointly. If one becomes unable to act, the Lasting Power of Attorney then becomes of no use.
You can include instructions in your Lasting Power of Attorney stating how you’d like your Attorneys to be appointed and their powers, should one become unable to act. However, these need to be written clearly and you need to fully understand the consequences. If you don’t appoint your Attorneys correctly or there is conflicting information in your Lasting Power of Attorney, it will not be usable. A friend or family member will then have to apply to the Court for a Deputyship Order instead – a lengthy and expensive procedure that is best avoided.
Appointing Attorneys and replacement Attorneys is one of the most complex areas to understand in relation to a Lasting Power of Attorney. We strongly recommend you take legal advice on this aspect of making an LPA.
Q: When can my Lasting Power of Attorney be used?
Once registered, the Finance and Property Lasting Power of Attorney can be used straight away with your permission. This means that you can use it if you need help with your finances – for example, because you’re finding them difficult to manage or because you are detained in hospital for a long period of time. Note that this is an option you must select on the form – if you do not select it, you may find that your Attorneys have to prove you have lost mental capacity every time they want to use the document. This can cause delays and problems.
The Health and Welfare Lasting Power of Attorney can only be used if you lose mental capacity.
Q: What is the difference between a Lasting Power of Attorney and an Ordinary Power of Attorney?
An Ordinary Power of Attorney is a document you complete allowing someone to perform some task for you, while you still have mental capacity. For example, someone with a visual disability may find it useful to allow a family member to help them with their finances, including tasks such as going to the bank. The Ordinary Power of Attorney cannot be used if you lose mental capacity.
Q: What obligations do my Attorneys have?
Your Attorneys must always act in your best interests. The Mental Capacity Act Code of Practice explains what this means exactly:
- Your Attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
- Your Attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
- Your Attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
- Your Attorneys must act and make decisions in your best interests when you are unable to make a decision.
- Before your Attorneys make a decision 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 freedoms but still achieves the purpose.
Attorneys are bound to follow these principles.
Q: Can I place restrictions on the power that my Attorneys have?
Yes, as noted above you can add restrictions – for example, you could specify that larger decisions, such as selling your house, must be made jointly. Again this area has the potential for a lot of pitfalls if you do not word your restrictions correctly or if they in any way conflict with the choices you have made on your form. Legal advice is strongly advisable.
Q: Will my Attorneys be supervised?
Yes, the Court of Protection provides supervision and they charge for this service. Your Attorneys will also have to submit reports detailing their actions.
Q: Can my Attorneys sell my house?
If you have a Finance and Property Lasting Power of Attorney, your Attorneys can sell your house, unless you put restrictions in the document that prevents them from doing this. However, remember that they must always act in your best interests. They cannot, for example, sell your house if you need to live in it and it adequately meets your needs!
Q: Can my Attorneys put me into residential care (a nursing home)?
If you have a Health and Welfare Lasting Power of Attorney, your Attorneys can put you in a residential care home if this is in your best interests. You can restrict their powers to make this decision if you wish. There is also a section on the document where you can set out your wishes – although this section is not binding on your Attorneys.
Q: Can my Attorneys give away my assets?
Your Attorneys can give some gifts on your behalf, but these are limited. They can give presents on ‘customary occasions’, such as birthdays and weddings. They can also donate to a charity if you have previously given to that charity. In all cases, gifts must be reasonable, and must take into account how much money you have.
You can restrict your Attorneys from being able to make gifts on your behalf, but you can’t give them extra powers beyond those detailed above. For example, you would not be able to give them the power to make an interest free loan to a family member.
Q: Can my Attorneys be removed?
If one of your Attorneys is not acting in your best interests, the Court of Protection can get involved and may decide to take such action.
Q: What happens if one of my Attorneys no longer wants to act?
If one of your Attorneys no longer wants to act for you, they can disclaim their appointment using form LPA005. If the remaining attorneys were instructed to act jointly, they will no longer be able to act. However, if you have a replacement attorney or attorneys, the replacement(s) will be able to act instead. A lawyer can advise you on what to add to your Lasting Power of Attorney to ensure it works as you would expect, should one of your Attorneys stop acting for you.
Q: Who can be a ‘Certificate Provider’?
When you make a Lasting Power of Attorney, a ‘Certificate Provider’ must sign to say that you understand what you are doing in making the Lasting Power of Attorney and that nobody has forced you to do it.
Your certificate provider needs to be 18 or older and must be:
- a friend, colleague or someone you’ve known well for at least two years (not an acquaintance)
- your doctor, lawyer or someone with similar professional skills enabling them to judge that you know what you are doing and are not being forced or pressured to make an LPA
Your certificate provider must be impartial so logically, they cannot be one of your Attorneys or replacement Attorneys.
Q: How much does it cost to make and register a Lasting Power of Attorney?
There are two types of fees to pay when making a Lasting Power of Attorney – legal fees and court fees.
Lawyers charge very different amounts for this service, ranging from around £240 up to £1,000 + VAT.
The Court charges £82 to register each type of Lasting Power of Attorney. However, you can get discounts and remissions if you have a low income.
Q: How long does it take to register a Lasting Power of Attorney?
Once you have made your Lasting Power of Attorney and sent it off to the Court to be registered, it can take quite a while to get the registered document back from the Court – depending on how busy they are. This could be around 10 weeks. If you lose capacity in the meantime, the document will still be valid – your Attorneys just won’t be able to use it until it is returned by the Court.
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