A Lasting Power of Attorney (LPA) is when you give another person, whether your spouse, a relative, or close friend, authority to make decisions on your behalf.
An LPA is an important document which must be registered with the Office of the Public Guardian (OPG) in Birmingham before it is effective. Registration costs £82. LPA forms and guidance notes can be found on the government website.
If you are the one authorising the LPA, then you are the ‘donor’, the people who would act for you are the ‘attorney(s)’. The ‘certificate provider’ is someone who has either known you for two years or a professional person who can check your mental capacity, such as a GP, solicitor, or social worker.
It is now possible to begin the application for an LPA online. However, it cannot be completed wholly online as the signatures of the donor, the certificate provider (who confirms the donor has capacity and is aware of what they are doing) and the attorney(s), are required.
What types of LPA are there?
There are two types of LPA:
- Health and welfare
- Property and financial affairs
Property and financial affairs LPAs govern matters such as property transfers and bank accounts Health and welfare LPAs govern matters such as refusing or accepting healthcare treatment and day-to-day care.
When might I need an LPA?
LPAs can only be created while the donor still has capacity. If you are concerned about your health, or that you may not be able to make decisions in the future, you may want to consider an LPA. An LPA can either take effect as soon as it is registered or only once the donor loses capacity.
Who should be my attorneys?
You can choose whomever you wish to be your attorney, but it should be someone you trust. An attorney would be breaching their duty if they acted in bad faith, or in a way to deliberately harm you. However, it may be difficult to remove an attorney once appointed, so you should be careful about whom you choose.
Spouses and other relatives are commonly used as attorneys, as they often care for the donor when they become vulnerable, and it is more practical for them to be the ones to assist the donor.
Attorneys can act either ‘jointly’ or ‘jointly and severally’. In the former, if more than one attorney is appointed, then they must make all their decisions together. This can be an issue if one attorney no longer wants to act, as then the LPA becomes useless. With the latter, each attorney can make decisions independently of one another, but also together. This provides for greater flexibility.
You can express preferences or wishes for how you would like your attorneys to act. For example, you can prefer that the attorneys keep your funds in one particular bank account and not move them to another bank. You can also issue instructions whereby the attorneys ‘must’ do something e.g. my attorneys must invest 10% of the interest of my savings account into the stock market each year.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page
Alina Dewshi
November 2021
