Lasting power of attorney guide
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Legal and Funding
What is lasting power of attorney?
A lasting power of attorney (LPA) is a powerful document registered with the Office of the Public Guardian. It puts a trusted person in charge of the key decisions you will need to make in either the future. LPAs were created under the Mental Capacity Act 2005, and came into effect on 1 October 2007.
Ultimately, it means you can find reassurance that someone will be able to protect and carry out your wishes in the event that you are unable to communicate them yourself.
It can be difficult and uncomfortable to think they we may at some point lose our mental capacity to make big decisions about life – such as how we want to be medically treated ,or what happens to the money in our bank accounts. However, failing to elect a power of attorney when you need one can bring it’s own set of challenges. You’ll need to apply to the Court of Protection who will assess if you have the capacity to make decisions. If they agree you can’t they’ll assign an impartial person as your deputy to make these decisions in your best interests. In these cases you can’t choose your own deputy, and the process of appointing one can take a long time and be more expensive than arranging your own power of attorney.
The very process of putting a lasting power of attorney in place is often an important one in coming to terms with your situation. It allows you to really start thinking further down the road at the big choices that lay ahead, such as care options.
There are two different types of LPA, which can be applied for at different times, which we cover below.
What’s meant by mental capacity?
Mental capacity is someone’s ability to understand, retain, calculate and communicate information around a particular decision. The law covering mental capacity is laid out in the Mental Capacity Act (2005), which enables people to plan ahead in case they’re no longer able to make decisions for themselves.
Common conditions that often limit mental capacity are:
Ordinary power of attorney
Sometimes you may only need someone to make manage your personal finances on your behalf for a temporary period, for example if you’re in hospital or less mobile and need help getting to the post office to pay bills. An ordinary power of attorney allows you to nominate someone to do this, and unlike an LPA is only valid while you still have mental capacity. You can dictate which assets or bank accounts your attorney has access too to – for example, if they’re paying bills, you may only want to grant them access to a particular bank account.
The different types of power of attorney
There are two variants of lasting power of attorney. You may want to put one, or both in place, depending on your situation.
Property and finances lasting power of attorney
If you’re unlikely to be able to manage your own financial affairs, you can nominate a loved one to make these financial decisions on your behalf.
The LPA can cover the following, but can also be restricted depending on how it’s drafted:
- Managing property portfolio — whether to buy or sell
- Paying your mortgage
- Managing investments
- Paying for your care
- Taking control of your current accounts or savings, and building society accounts
- Managing benefits
- Managing tax
Your power of attorney must ensure your money and assets are kept separate from their own, and keep accurate accounts of payments. and make sure their money is kept separate from yours. If you’d like, you can ask for regular updates of where your money is being spent to be shared with a solicitor or family members too.
Health and welfare lasting power of attorney
A health and welfare lasting power of attorney ensures the best decisions can be taken on your behalf regarding your healthcare, medical treatments, living arrangements, and day to day matters in the event you lack the capacity or ability to do this yourself. They can also make decisions about life-sustaining treatments if you wish them to.
To ensure your attorney understands your wishes and can truly act on your behalf, you may wish to open up a conversation with them to discuss their wishes when it comes to the following –
Care environment
Think about whether you want to receive care in their own home or move into a residential care home facility. If at home, you’ll need to consider whether you require adaptations to make your home suitable for your changing needs.
Social life
Who you see and when – how often you have contact with friends and family. Also take into consideration community groups, coffee mornings and day care centres.
Daily routines
What food you want to eat, what daily activities you like to undertake and what clothes you like to wear. In establishing this, it may help to consider what a typical day looks like.
What’s the difference between a lasting and enduring power of attorney?
In short, the lasting power of attorney has replaced the enduring power of attorney. An enduring power of attorney was a legal instrument available up until October 2007. From that point onwards, LPAs became the new norm. An enduring power of attorney focused solely on the financial estate of the person no longer able to manage their own affairs.
It’s no longer possible to apply for an enduring power of attorney. That’s not a problem, because you’re able to get many of the benefits with a ‘finances and property’ lasting power of attorney.
LPAs significantly increased protection, with mandatory registration with the Office of the Public Guardian as soon as the decision is taken. Previously, with an EPA, all that was required was a signature which didn’t have to be registered at first. But only when the ‘donor’ had lost their capacity.
How do you put a lasting power of attorney in place?
The government body responsible for lasting power of attorney is the Office of the Public Guardian (OPG). Established in 1997, following the Mental Capacity Act of that year, it’s to them that you should submit your completed lasting power of attorney forms.
Applying for lasting power of attorney is a big decision, and seeking professional advice and doing your own research is important. Once you’ve decided it’s time to put a lasting power of attorney in place and you understand the process well enough to feel confident doing this without legal advice, you can visit the government website to download and print your own lasting power of attorney forms.
There are different version available for each type of LPA. The LPA will need to be signed by the attorneys, a witness and ‘certificate provider’. The latter has to be someone with relevant professional experience such as:
- A medical professional such as a doctor or nurse
- A financial expert such as an accountant
- A legal expert such as a solicitor, lawyer, will writer
Once it has been signed and returned the OPG, it can take up to ten weeks for it be registered
Help is on hand
As it’s a very important legal document, before arranging an LPA, you can get expert advice from a range of sources. Try your social worker, occupational therapist, or a specialist charity. The Alzheimer’s Society and Citizen’s Advice can both help you make an informed decision.
Co-Op Legal LPA online service
While you don’t have to use a solicitor to create an LPA, you may wish to enlist some professional support. Our partner Co-Op Legal Services have created an online service to make sure what’s important to you is included in your LPA and that it’s specific enough to avoid problems. Prices start at £120 and you can find out more below.How much does lasting power of attorney cost?
The basic cost is £82 per LPA, plus any additional charges for any mistakes. So, if you register both forms of LPA, that would cost £164. However, if you’re on certain means-tested benefits, you may be exempt from charges, or receive a discount.
You should also consider whether or not you need the support of a solicitor or lawyer. This can help minimise the chance of making a mistake, an important factor if you need everything completed quickly.
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