Lasting Power of Attorney in England & Wales
A lasting power of attorney lets you appoint an ‘attorney’ to make decisions on your behalf. An LPA is a legal document that must be created whilst you are still capable, it must also be registered with the Office of the Public Guardian.
You can appoint one or more people as an attorney. You can give them the authority to act independently or state that they must act together on all decisions. You can also appoint a substitute attorney. You can make two types of LPAs, one for your property and financial affairs and another for your personal welfare.
Property & Affairs LPA
A Property and Affairs LPA allows you to choose someone to make decisions about how to spend your money and the way your property and affairs are managed including your house. Once your LPA is registered it can be used at any time, whether you have the mental ability to act for yourself or not. Restrictions or conditions can be included to limit the powers you give your attorney(s).
Personal Welfare LPA
A Personal Welfare LPA covers decisions about your healthcare and welfare, from whether to consent to treatment on your behalf, to deciding what you should eat or what clothes you should wear. This type of LPA must also be registered but unlike the Property and Affairs LPA it can only be used if you lack the capacity to make the decisions yourself.
You can give a general power without restrictions or limit the types of decisions which your attorney(s) can make on your behalf.
It is important to plan how your property & finance and health & welfare will be managed should you become incapable. The Mental Capacity Act 2005 made it possible to formally appoint someone to manage these decisions through a Lasting Power of Attorney (LPA).
How to make an LPA?
Before you can register your LPA you must have a certificate of capacity drawn up by an independent third party called a Certificate Power. This could be your solicitor, your doctor or another independent person that you have known personally for at least two years. There are separate forms for making a property and affairs LPA and a personal welfare LPA.
The form must be registered at the Office of the Public Guardian before it can be used. There is a fee of £120 per form being registered.
Who can make an LPA?
Providing you have the capacity to do so anyone aged over 18 can make an LPA.
Who can act as my attorney?
Anyone over 18 and not bankrupt can be appointed as your attorney(s). You can also appoint replacement Attorneys.
You should choose someone you trust, the Mental Capacity Act sets out principles your attorney(s) must follow when they are acting on your behalf. They must always consider your needs and act in your best interest.
A person can refuse to act as an attorney. There are duties an attorney must adhere to, failure to comply could mean the LPA is cancelled and the attorney taken to court on charges of fraud or negligence.
Why should I use a Solicitor?
If you have property and financial affairs a solicitor with experience of preparing LPAs will be able to advise you on the correct restrictions and clauses you may wish to include. You do not have to seek legal advice but an LPA is a powerful and important legal document.
For further information, advice or guidance please contact
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