Lasting Power of Attorney Guide

An LPA for property and financial affairs allows your attorneys to make financial decisions, including:

• Opening, closing, and using your bank and building society accounts.
• Claiming, receiving, and using your benefits, pensions, and allowances.
• Paying your household, care, and other bills.
• Making or selling investments.
• Buying or selling your home.

You may wish to make two LPAs for financial decisions; one for your personal finances and another for your business affairs. The latter is commonly referred to as a ‘business LPA’. The attorneys must act in your best interests and any decisions they make will be subject to any ‘Instructions’ and/or ‘Preferences’ you set out in the LPA (this will be discussed in more depth in Section 3).

An LPA for health and welfare decisions allows your attorneys to make decisions such as:

• Giving or refusing consent to health care.
• Staying in your own home and getting help and support from social services.
• Moving into residential care and finding a good care home.
• Day-to-day matters such as your diet, dress, and daily routine.

Your attorneys can only make decisions when you don’t have mental capacity. When setting up your LPA, you need to decide whether to grant your attorneys the authority to give or refuse consent to life-sustaining treatments on your behalf. As with property and financial affairs, the attorneys must act in your best interests and all decisions will be subject to any ‘Instructions’ and/or ‘Preferences’ you set out.

An LPA is for just one person. Couples wishing to create LPAs need to create them individually. This can often mean creating four LPAs, with each partner creating both an LPA for property and financial affairs, and another for health and welfare decisions. You can make an LPA if:

• you are at least 18 years old.
• you have the mental capacity to do so.

‘Mental capacity’ means the ability to make and understand a specific decision at the time it needs to be made. Most people can make an LPA, but there may be complications if they live or have property outside of England and Wales, are bankrupt or are subject to a debt relief order.

The people you choose to act for you are called the attorneys. They will only have the authority to make decisions that you have allowed them to make in the LPA. LPAs are governed by the Mental Capacity Act 2005 (MCA), regulations made under it, and the MCA Code of Practice. All attorneys must therefore follow the principles of the MCA:

• They must assume the donor can make their own decisions unless established that they cannot.
• They must help the donor make as many of their own decisions as they can and take all practical steps to help the donor make a decision. An attorney can only treat the donor as incapable if they have not succeeded in helping the donor make their own decision.
• The attorneys must not treat the donor as unable to make a decision simply because they consider that decision to be unwise.
• The attorneys must act and make decisions in the donor’s best interests when the donor is unable to make a decision.
• Prior to the attorneys making a decision on behalf of the donor, the attorneys must consider whether they can make the decision in a way that is less restrictive to the rights of the donor and their freedom, while still achieving its purpose.

There is no cap on the number of attorneys that can be appointed but having too many can complicate matters, as they will need to work together.

You should make sure each person agrees to be an attorney before they are named within the document.

Things to consider when choosing who to appoint include:

• How many attorneys do you wish to appoint?
• Will the appointed attorneys be able to work together?
• Can they be trusted to act in your best interests?
• How well do the attorneys know one another?
• How well do they understand you?
• How willing will they be to make decisions for you?
• How well do they organise their own affairs?

Attorneys don’t need to be solicitors, although our partners are able to act as your attorney should you wish to appoint one or more of them. Professional fees would apply. Most people choose family members, friends, and other people they trust with no legal background. The most important criteria are that they know you, respect your views, and will act in your best interests.

Attorneys must be at least 18 years old and have the mental capacity to make decisions.

Attorneys cannot act on an LPA for property and financial affairs if they are currently bankrupt or subject to a debt relief order. Attorneys cannot act in any LPA if they have lost mental capacity or if they were the donor’s spouse or civil partner and the relationship has legally ended. Where attorneys are appointed to act jointly, these events will affect the appointment of other jointly appointed attorneys.

The certificate provider’s role is to sign the LPA to confirm they’ve discussed it with the donor, that the donor understands what they’re doing, and that nobody is forcing them to do it.

Your certificate provider should be:

• Someone who has known you for at least 2 years, such as a friend, neighbour, or colleague, or former colleague, or
• Someone with relevant professional skills, such as the donor’s GP, a healthcare professional, or a solicitor.
• 18 years or over.

A certificate provider cannot be:

• An attorney or replacement attorney named in the LPA, or any of other LPA or enduring power of attorney of yours.
• A member of your family or one of the attorney’s families.
• An unmarried partner, boyfriend, or girlfriend of yours or any of the attorneys.
• A business partner of yours or any of the attorneys.
• An employee of yours or any of the attorneys.
• An owner, manager, director, or employee of a care home where you live.

A replacement attorney steps in if one of the original attorneys dies, loses capacity, no longer wishes to be an attorney, becomes bankrupt or subject to a debt relief order, or is no longer the donor’s husband, wife, or civil partner. They can only act if the attorney they are replacing is permanently unable to make decisions for any of the reasons above. They cannot temporarily stand in for an attorney and they cannot replace a replacement attorney. One of your original attorneys cannot be a replacement attorney in the same LPA.

Though not legally required, replacement attorneys are a sensible way to protect your LPA. If you don’t include replacement attorneys, your LPA will cease to work if your original attorney cannot make decisions for you. Someone new would then need to apply to the Court of Protection to get the power to act on your behalf. This can be expensive and time-consuming. Similarly, if a jointly appointed attorney can no longer make decisions, the joint appointment fails, and the surviving attorney can no longer make decisions either.

Replacement attorneys must meet the same criteria as an original attorney.

The donor can let people know that they’re going to register an LPA. The persons notified can then raise any concerns they have about the LPA – for example if they feel there was pressure or fraud in making it. They should be people who care about your best interests and would be willing to speak up if concerned. They can object, but only on certain ‘factual’ and ‘prescribed’ grounds. After that, they are no longer involved in the LPA.

The person applying to register the LPA must inform each person nominated for notification.

They cannot be attorneys or replacement attorneys.

A witness is an impartial person aged 18 or older. They are required to witness both the donor and their attorney’s signing of the LPA, as a donor can’t witness the attorneys’ signatures and the attorneys (original or replacement) can’t witness the signature of the donor.

When creating an LPA for property and financial decisions, you can either grant your attorneys the authority to make decisions:

• As soon as the LPA is registered

or

• Only when the donor has lost mental capacity

Most people allow their attorneys to make decisions as soon as the LPA is registered. This enables your attorneys to act for you if you are away on holiday, or if you have a condition that makes it difficult for you to perform certain tasks, such as visiting the bank, talking on the phone, or signing documents. It also prevents delays if you lose capacity, as the attorneys won’t need to collate evidence that you have lost capacity each time a decision needs to be made. It’s important to remember that attorneys must only act with your consent whilst you have mental capacity.

You can give your attorneys instructions or tell them about their preferences within the LPA, though it is advisable to seek legal advice if you do. These instructions and preferences should be observed by the attorneys when making decisions.

Preferences are what you’d like all your attorneys to think about when making decisions for you. Your attorneys don’t have to follow them but should bear them in mind.

Instructions tell your attorneys what they must do when acting on your behalf. If you want to give instructions, we recommend seeking legal advice, as incorporating bespoke instructions can present problems.

You can cancel your LPA at any time, as long as you have mental capacity. It doesn’t matter if the LPA is registered. An LPA can be cancelled by a written deed of revocation. It must be executed as a deed and then sent to the OPG with the original, registered LPA document. All attorneys must also be informed.

Setting up an LPA is an important decision and requires a significant commitment from you and your chosen attorneys. Our specialist solicitors will ensure all arrangements are made in your best interest. Kew Law provide tailored advice on matters uniquely applicable to your LPA, such as residency and foreign-owned property, bankruptcy, and debt relief orders. With our help, you’ll have peace of mind knowing that your LPA has been set up correctly and that you’re protected from future issues or expensive delays. Our fixed fee service offers complete transparency so that you can benefit from our ongoing support without fear of spiralling costs.

Get in touch with a member of our team to arrange your free initial consultation.