How does a Lasting Power of Attorney work?

A Lasting Power of Attorney (LPA) is a legal document that you (the donor) can prepare for your loved ones (attorneys) to act on your behalf if needed in your lifetime. Although you may never need to action it. It can be vital to have in place.

Many people believe that as long as they have a Will, that is all they need, but these two documents are completely different as the Lasting Power of Attorney is for your lifetime, whereas the Will begins once you have passed away. Although, both are important in their own ways.

The hope is that you will never need to act on your lasting power of attorney, but should the need arise. It can bring you peace of mind that everything is already in place and that you have people you have personally chosen and can trust helping you make some of life’s biggest decisions.

What exactly is a lasting power of attorney and why do you need one? 

A Lasting Power of Attorney is a document where you (the donor) appoint someone you trust to act as your attorney.

This simply means that they can make decisions on your behalf when you are unable to make them for yourself.

An LPA should be made when you have full mental capacity and are able to understand the decisions you are making and their consequences. Although many people state that they only want their LPA to be actioned in the event that they lose mental capacity. 

Are there different types of lasting power of attorneys? 

There are two types of Lasting Power of Attorneys – 

• Property and financial affairs 
• Health and welfare 

Property and Financial affairs

A property and financial affairs LPA allows someone to make decisions on your behalf surrounding your properties and finances.

For example, it allows them to –

• Pay your bills. 
• Handle your bank accounts. 
• Sell and maintain your properties. 
• Invest your money.

This can be used as soon as it is registered if you wish.  

Health and Welfare

This allows someone to make decisions on your behalf surrounding your medical and daily needs. It can only be used when you are unable to make these decisions for yourself. 

• Decisions regarding your medical care and treatment. 
• Where you live. 
• Decisions surrounding your daily routines and social activities. 

NOTE: You will need two LPA’s, one for each of these categories. If you have an attorney for your health and welfare they will not be able to deal with your finances or properties without a property and finance LPA and vice versa. 

When will my LPA come into effect? 

For many people they only want their LPA to come into effect in the event that they lose mental capacity.

However, this doesn’t always have to be the case. For example, a soldier deploying will often want a Property and Finance LPA to ensure that his finances can be looked after whilst he is away. This means that it will also be in place should they be injured whilst away. 

For your LPA to be legal it needs to be registered with the Office of the Public Guardian before it can be used. For this reason it is best to file it with them as soon as possible. It will then be ready to use as and when it is needed.

It can take between 8-10 weeks to register your LPA and costs £82.

How do I make a lasting power of attorney? 

It is advised to make your LPA with a Solicitor to ensure that the forms are completely properly and in the correct order although you can do this yourself.

The forms are available on the government website to download.

You will need the following people to make your LPA – 

• Yourself (The donor) 
• Your Attorney(s)

You can choose to have more than one. You can also appoint replacement attorneys.

• Certificate Provider

Your certificate provider will confirm that you have full mental capacity and that you understand the decisions you are making. They will also confirm that you are not being pressured into making any of these decisions. 

• A witness

A witness must sign to confirm that they have witnessed both you and your attorney(s) signing the LPA.

You cannot be a witness for your attorney(s) and they cannot be one for you although your attorneys are able to be a witness for each other. 

Legal requirements to be your Attorney

Your attorney(s) must be over the age of eighteen years old.

They can be a –

• Relative
• Friend
• A professional such as your Solicitor
• Your spouse or partner. 

It is important that you choose someone that you can trust to make the right decisions for you and your welfare.

If you choose to have more than one attorney you must also decide how they should make decisions. If you state that they should make decisions jointly, all of them will have to agree on decisions before they can be acted upon. 

Your Certificate provider must meet the following criteria –

• Is over the age of 18 years old
• Is either a professional such as a Doctor, Social worker, Solicitor

Or

• Has known you for over two years and is not a family member of either yourself or your Attorney(s).
• Is not a business partner or employee of either yourself or your Attorney(s).
• Cannot be the owner or employee at a care home where either yourself or a family member currently resides.

Your Certificate provider can also act as the Witness for either yourself or your attorney(s) (or both if you choose.)

The Witness cannot be a Certificate provider if they do not meet the aforementioned criteria.

Once you have finished your LPA and are ready to submit it to the Office of the Public Guardian you should send a ‘form to notify people (LP3)’ to anyone that you want notified. This can be family members or close friends. They will then have three weeks to raise any objects with the OPG. 

Can I change or end my LPA once it has been submitted? 

There are scenarios where you can change your LPA. For example, if you want to remove an attorney or if their details change. Such as their surname or address. These requests must be made in writing to the OPG.

Should one of your attorneys pass away you will need to provide the OPG with a copy of their death certificate and all copies of the original LPA. 

You are able to end your LPA if you still have mental capacity at any time by sending the original LPA, along with a written statement called a ‘deed of revocation’, to the OPG.

When you pass away your lasting power of attorney will automatically end. From that point all of your affairs will be looked after by the executors of your will. 

The hope is that you will never need to act on your lasting power of attorney, but should the need arise. It can bring you peace of mind that everything is already in place and that you have people you have personally chosen and can trust helping you make some of life’s biggest decisions.