You may be concerned about what would happen if your health failed or you had a serious accident, or that you are getting older and one day will not want or be able to manage your own affairs. A Lasting Power of Attorney (LPA) lets you plan ahead for these eventualities by letting you say now who you want to make decisions for you in the future.
Similarly, if you have an elderly relative who is worried about how they might cope in the years to come, you could set their mind at rest by suggesting they set up an LPA now for future use.
More people are choosing to make an LPA than ever before. Contrary to popular myth LPAs are not just for older and wealthier people – anyone can benefit from having one in place. Hopefully you’ll never need it but once you’ve got one, it can just sit waiting to be used if the need does arise.
This guide explains how to set up an LPA in England and Wales. The system for setting up a power of attorney is different in Scotland and Northern Ireland. If you're in Scotland, contact the Office of the Public Guardian (Scotland) for more information (01324 678 300) or mypowerofattorney.co.uk. If you're in Northern Ireland, the Office of Care and Protection can help (0300 200 7812) and you can find more information on nidirect.gov.uk and from the Department of Justice. If you have assets in more than one country, say Scotland and England, or if you relocate you may need a separate power of attorney for each country but the situation isn’t clear and you should seek advice on this.
What is a Lasting Power of Attorney?
An LPA is a document which allows someone else to make decisions for you and to act on your behalf if you are no longer able to do this for yourself. The person or people you choose to do this for you are known as your attorneys.
An LPA could involve your attorneys taking care of your money (such as paying bills or managing your savings and investments), your property (such as arranging repairs to your home or buying/selling property), your welfare (such as choosing where you live, what you eat and who you see) or your health (such as what medical treatment you receive).
Before it can be used, an LPA must be registered with the Office of the Public Guardian. You can do this whenever you like so this could be several years before you expect to use it.
There are two types of LPA:
Property and financial affairs: This allows your attorneys to make decisions for you concerning your property and money. You don’t need to have a lot of money or own your home to make one. It can be just as useful to have one to make sure you have help paying bills or managing your bank accounts – something your relatives will not be able to do unless you have an LPA which gives them the proper authority. You can choose when the LPA can be used and how. For example, you can give your attorney authority to start making decisions for you right away, at a particular time for a set period, or only once you’re no longer able to make decisions yourself.
Health and welfare: This type of LPA can only be used once you are unable to make your own decisions. Your attorneys then make decisions about your health and welfare for you.
What does an attorney do?
Attorneys make decisions for the person they have an LPA for. They must follow the Code of Practice of the Mental Capacity Act 2005, act in your best interests and in line with the powers you gave them in the LPA (for example, if you only make a property and financial affairs LPA they can’t make decisions about your medical treatment). For more information on being an attorney, see gov.uk
How to make a Lasting Power of Attorney
There are three steps to making a Lasting Power of Attorney:
- Choose your attorneys
- Fill in the relevant forms
- Register your LPA and pay the registration fee.
You must have mental capacity at the time you set up the LPA and, to make sure no-one has forced you into signing an LPA, when you complete the forms you will appoint a person to be a certificate provider. This is someone who confirms you know what you're signing and understand the powers it will give your attorneys.
As another safeguard, you can name people who should be informed when an application is made to register your LPA. These should be people who have your best interests at heart and who would speak up to object to the registration if they have any concerns.
You can either pay a solicitor to fill in the forms for you, complete the forms online yourself, download the forms and complete them by hand or ask for the forms to be sent to you by post by phoning 0300 456 0300.
How to register an LPA
An LPA can only be used once it's been registered with the Office of the Public Guardian.
You have to pay a fee to register each LPA application unless you receive certain state benefits or are on a low income. If you think you may be entitled to a fee reduction or waiver you'll need to complete form LPA120.
How to cancel an existing LPA
You can cancel an LPA at any time providing you have the mental capacity to do so. You may want to do this because your circumstances change or you no longer want or need a particular person to make decisions for you.
To cancel an LPA, complete a Deed of Revocation and send it to the Office of the Public Guardian with the original LPA. Gov.uk has some sample wording for a Deed of Revocation you can use.
An LPA will automatically be cancelled in some situations, for example if your attorney loses mental capacity.
What happens without an LPA?
If you don’t have an LPA in place and you lose the ability to make your own decisions your family can apply to the Court of Protection to be granted powers to make decisions on your behalf. But it’s a more costly, complicated and onerous process than setting up and using an LPA. Find out more on gov.uk.
Written on 15 January 2018