Lasting Powers of Attorney
A lasting power of attorney (LPA) is a legal document in which someone (the donor) gives another person (the attorney) the right to help them make decisions or take decisions on their behalf.
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​There are two types of LPA, for:
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property and financial affairs, which can be made for both personal and business reasons
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health and welfare
​LPAs let the donor choose people to look after their affairs if they:
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lose mental capacity (either temporarily eg Covid or other illness or permanently)
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develop, or think they may develop, an illness that may stop them making
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decisions for themselves, for example dementia or a brain injury
​The donor can make one or both types of LPA. Donors should make an LPA while they have mental capacity. If there is nobody appointed as an Attorney and a person loses capacity, it is left to the Court of Protection to appoint a Deputy.
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Without being formally appointed NOBODY, not even a partner or next of kin has the power to act as Attorney.
The Court of Protection is also a very costly (and has annual costs to pay to the court) and protracted procedure to go through. Obviously, this does not include any registration fees payable to the Office of The Public Guardian.
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LPA for property and financial affairs – A Property and Financial Affairs Lasting Power of Attorney (LPA) allows you to
plan ahead by choosing one or more people to make decisions on your behalf regarding your property and financial affairs.
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You can appoint a property and affairs Attorney to manage your finances and property whilst you still have capacity as well as when you lack capacity.
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For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income. The LPA can also restrict the decisions an attorney can make.
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​LPA for health and welfare – An LPA for health and welfare can be used to appoint attorneys to make decisions on, for example:
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Deciding if you should continue living in your own home, (with or without social services support) or if it would be more appropriate for you to be moved in to a residential nursing home or other alternative accommodation day-to-day care (for example, diet and dress)
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who the donor should have contact with
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Consent or refusal of types of health care and treatments for medical conditions
​Business LPAs – This is an increasingly important area to consider particularly for owners of small businesses. A business owner can make a separate LPA for property and financial affairs to appoint an attorney to make decisions about the business should they lose mental capacity. They can still make an LPA for their personal property and financial affairs.
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Making an LPA – Checking mental capacity - You must be satisfied that the donor has mental capacity to make a PoA. Under the Mental Capacity Act 2005 (MCA 2005) someone is assumed to have mental capacity unless it can be proved otherwise.
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You should get specialist medical opinion if you have any doubts about the donor’s mental capacity.
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Choosing an attorney – The donor will need to choose at least one attorney. The same attorney can be appointed for both LPAs or someone different can be appointed for each. But it’s sensible to appoint more than one attorney in case one of them cannot act for the donor in the future.
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​Acting as an attorney under an LPA – An attorney must always act in:
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accordance with the statutory principles of the MCA 2005 (section 1)
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the best interests of the donor (section 4)
This means, when making a decision on behalf of the donor, the attorney must:
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encourage the donor to be part of the decision as much as possible
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consider the donor’s past and present feelings
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talk to people the donor knows who can suggest what might be in the donor’s best
interests
Attorneys also have a duty:
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of care
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to carry out the donor’s instructions
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not to delegate authority, unless it’s specified in the PoA
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of confidentiality – unless the donor has agreed that personal information can be disclosed, for example to
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an accountant, or because it’s in the donor’s best interests
There are also duties to keep:
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records of payments made on behalf of the donor
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the donor’s money and property separate from the attorney’s
​Applying for an LPA – There are separate forms for each type of LPA that must be completed
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Who should sign it? - The forms must be signed by the:
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donor
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attorney(s)
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certificate provider, and the signatures need to be witnessed
The certificate provider is an independent person who confirms that the donor:
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understands what they are doing
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is not under undue pressure or fraud used to induce him or her to make the LPA
There are criteria to apply for who can be a Certificate Provider:
The LPA must be signed in a specific order, and it will not be valid if not registering the LPA
The LPA can be registered by:
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the donor, if they have mental capacity
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all attorneys, if they’re appointed jointly under the LPA – this means the attorneys must make all decisions together
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any attorney, if there’s only one attorney appointed, or several attorneys appointed jointly and severally – this means that any one of the attorneys can make a decision​
It’s a good idea to register the LPA as soon as possible, so there are no delays if it needs to be used straight away. Unless a Donor is in receipt of certain benefits there is a fee to register an LPA.
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​Changing the LPA – The donor cannot make changes to an LPA after it’s registered. If they want to add another attorney, they must cancel the LPA and make a new one.
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When the donor dies – The LPA ends automatically when the donor dies. The attorneys can no longer act or make decisions under the LPA. The attorney(s) must notify OPG (Office of The Public Guardian) of the death and send:
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the original LPA and all certified copies
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a copy of the death certificate
Free Initial Consultation
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For more information and advice, call us today to arrange your free, no-obligation, initial consultation on 01273 952090 / 0345 065 0005 or email legal@seagulllegalservices.co.uk.