Lasting Powers of Attorney

Many people have had the experience of seeing a friend or relative become incapable of dealing with his or her own affairs as a result of incapacity. This could be as a result of dementia, mental health problems, disability, brain injury, alcoholic or drug misuse, side effect of medical treatment, severe learning disability or a stroke. When this happens, it is often difficult for the family to pay outstanding bills or deal with the person’s finances generally.  If this situation arises, then an application has to be made to the Court of Protection and the procedure can be both slow and costly.

This can be avoided by making a Lasting Powers of Attorney (LPA).  An LPA is a legal document which allows you to choose someone to make certain decisions on your behalf.  That person is called your “Attorney”. You can appoint as many

Click below to see the two types of LPA. You can make just one type of LPA, or both types if you wish.

Neither type of LPA can be used until it has been registered with the Court (see below). The Health & Welfare LPA cannot be used unless you lose your mental capacity. The Property and Financial Affairs LPA can be used straight away, even if you still have capacity. This can be useful if, for example, a physical disability makes it difficult for you to deal with financial matters or if you would simply like your family to be able to look after matters for you.

You can choose anyone you like to be your attorney, so long as they are over 18, not a bankrupt and not mentally incapacitated. It’s sensible to choose someone who’s good at handling money to act under a Property and Financial Affairs LPA. It’s also important to choose someone you get on with who can be relied upon to act in your best interests. Most people choose close relatives or friends to act as their attorney. If you wish, you can appoint a solicitor or accountant to act as your attorney although they would generally charge a fee for fulfilling this role.

It is possible to appoint more than one attorney, in which case you’ll need to specify whether they are to act “jointly” or “jointly and severally”. Attorneys who are appointed jointly must always act together and cannot act separately. This means that if one of the attorneys dies, the LPA will be invalid. Attorneys who are appointed jointly and severally may act together but can also act separately if they wish, which provides more flexibility.

This LPA gives your attorney power to look after your property and finances on your behalf. This would include the ability to deal with the following matters:

  • Managing bank accounts and investments
  • Selling your property
  • Handling state benefits and pensions
  • Completing your income tax return
  • Making certain gifts

You can also include restrictions in the document which limit what the attorney can do.  Such restrictions need to be carefully phrased so that they don’t cause confusion in the future.

This LPA allows your attorney to make decisions about your health and personal welfare.  This would include the following types of decision:

  • Where you are to live
  • Arrangements for your day to day care
  • Decisions relating to medical treatment
  • Access to your personal information
  • Making complaints about your care or treatment

Once again, you can limit the scope of the LPA if you don’t want your attorney to have such wide powers.

You can, should you wish, give your attorney the power to refuse consent to life-sustaining medical treatment on your behalf.

Every LPA has to contain a statement from at least one “certificate provider”. The role of the certificate provider is to discuss the LPA with you and then sign a certificate to say that in his or her opinion you understand the LPA and have not been pressurised into making it. We can act as your certificate provider for no extra charge.

Either you or your attorney can apply to the Office of the Public Guardian (OPG) for registration of the LPA. Until the LPA is registered, your attorney cannot act on your behalf. The registration process takes at least six weeks, so we generally suggest it’s better to register the LPA sooner rather than later, just in case it’s needed in a hurry.

Once a Property and Financial Affairs LPA has been registered, your attorney has full power to administer your affairs (subject to any restrictions contained in the LPA).

Once a Health and Welfare LPA has been registered, your attorney only has power to take health and welfare decisions on your behalf if you are not able to make those decisions yourself.

In both cases, your attorney must follow the Mental Capacity Act 2005 Code of Practice whenever acting on your behalf. This Code gives guidance as to how decisions should be made by and for people with impaired capacity and is essential reading for all attorneys. In particular, the Code states that your attorney should support you to make your own decisions if you are able to do so, rather than simply taking the decision for you. Any decisions that your attorney takes on your behalf must be in your best interests.

The OPG has wide powers to supervise the actions of attorneys. That said, it will not usually exercise these powers unless problems are brought to its attention. It is therefore extremely important that you only choose as your attorney somebody in whom you have the utmost confidence that they will act in your best interests. 

If you wish to cancel your LPA prior to registration this can be done by means of a simple deed. If you wanted to cancel the LPA after it is registered, you would need to make an application to the OPG

Our Fees

Our fixed fee rates are as follows:

LPAs for a single person

Property and financial affairs LPA

£575 plus VAT

Health and welfare LPA

£575 plus VAT

Property and financial affairs and health and welfare LPA when made together

£750 plus VAT


LPAs for two people/mirror image LPAs

Property and financial affairs LPA

£800 plus VAT

Health and welfare LPA

£800 plus VAT

Property and financial affairs and health and welfare LPA when made together

£1,100 plus VAT

Please note these fees wiill be in addition to the Office of the Public Guardian’s registration fee of £82 per document.

This cost includes the provision of two certified copies of each LPA once it has been registered. 

Wake Smith is recommended in The Legal 500* for its personal tax, trusts and probate expertise.

FAQs

A Lasting Power of Attorney (LPA) is a legal instrument created by a person (the donor) to grant another person or persons (the attorney or attorneys) authority to act on their behalf

There are two types of LPA:

  1. Property and financial affairs - this gives your attorney power to deal with all your assets such as opening and closing bank accounts, drawing out money from bank accounts, buying or selling property and paying rent and household expenses;
  2. Health and welfare – this gives your attorney power to deal with issues surrounding your care such as consenting or refusing medical treatment and examination, deciding whether you should take part in social and leisure activities, and deciding where you live.

The property and financial affairs LPA can be used as soon as it is registered and continues should you lose capacity. The health and welfare LPA can only be used once you have lost capacity.

You can continue to make your own decisions for as long as you retain mental capacity.

There is no limit on the number of attorneys you can appoint.

If you don’t make an LPA no one can act on your behalf. If you lose capacity and have no health and welfare LPA, decisions regarding your care will be made by your doctor who will consider the opinions of those interested in your welfare. If you lose capacity and have no property and financial affairs LPA, a deputy may need to be appointed by the Court of Protection to be able to manage your finances if they are inaccessible. This application is more costly and onerous than making an LPA.

Mental capacity is your ability to make a decision about a particular matter at the time the decision needs to be made. To make a decision you must be able to consider the relevant information, evaluate the different options, and make a choice. There must also be intention to make that decision shown by understanding you are making a specific LPA for a specific purpose and understanding the consequences of this.

Your attorney must be over the age of 18 and have mental capacity. Your attorney for property and financial affairs cannot be subject to a Debt Relief Order or have been made bankrupt.

Aside from this you can choose anyone who you would be happy to make decisions for you to act as your attorney. You should consider whether you trust them, how well you know them, whether they have the expertise to manage your affairs and if you trust them to act in your best interests.

You can choose whether your attorney’s act jointly, jointly and severally, or jointly on some matters and severally on others. If your attorneys act jointly they must agree to each act done or decision made on your behalf and must both sign documents on your behalf. If your attorneys act jointly and severally they can make decisions together or independently. If you would like all attorneys to have to agree on some matters you can appoint them to act jointly on these decisions and severally on other decisions.

The complete and signed LPA is sent to the Office of the Public Guardian (OPG). The OPG charge a fee of £82 for registration of each LPA.

No, but a couple can have LPAs which mirrors each other’s, e.g. both appointing each other and children as their attorneys. A separate document for each person will be needed.

The death of an attorney revokes their appointment. If they are your sole attorney or all attorneys are appointed jointly this will revoke your LPA unless a replacement attorney has been appointed in the LPA. If your attorneys are appointed jointly and severally, any remaining attorneys can continue to act under the terms of the LPA.

While you have mental capacity you can cancel (revoke) your LPA expressly by a deed of revocation or destroying the LPA, or impliedly by an unambiguous act which is consistent with the continued operation of the power, such as making a new LPA.

An EPA allows your attorney to deal with matters relating to property and affairs only, and not health and welfare. An EPA also does not allow your attorneys to deal with any assets which are held by discretionary fund managers.

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