Powers of Attorney
At some point in the future, you may lose the mental capacity to manage and take care of your well being, wealth, business and/or property. This is a possibility for all of us, therefore it is always a good idea to consider setting up an LPA, so that one or several other people are legally able to look after the things you can’t. In other words, if you cannot make decisions or speak for yourself with regards to welfare, medical treatment, finances and so on, someone else can.
In legal terms, you are known as the ‘settlor’ and the person or people appointed to manage your affairs are called your ‘attorneys’. Attorneys will usually be family members or close family friends. Acting as an attorney is a big responsibility and you should make sure you understand all the implications before appointing someone. You should also seek legal advice from a solicitor.
Here are some of the most important steps in appointing Lasting powers of Attorney.
1. Choose an Attorney.
When setting up LPA you must first decide upon a person or persons who you really trust. For most people, this will be their spouse, partner, child, sibling, another family member or a close friend. It is also possible for your attorney to be a company, for example a bank – but that will cost money.
You are able to appoint more than one attorney. If so, you can say whether they need to make decisions jointly or whether each can decide things without the authority of the other. Please read our ‘what is Lasting Powers of Attorney’ section for more information on this.
You should also choose at least one replacement attorney who would fill the role if your attorney died or found themselves in a position where they could no longer act for you.
If you the people you choose to give LPA are all the same age as you, they might end up not being the best people to act for you when it comes to you needing help.
It’s possible to impose various restrictions and conditions on your attorneys, although these may be rejected if they are unworkable.
Types of LPA
When setting up your LPA you should consider the two different types:
- A property and financial affairs lasting power of attorney which lets someone manage all your financial affairs. This could include managing your bank account and savings, managing your taxes and selling investments and property.
- A health and welfare lasting power of attorney allows someone to make decisions regarding your health, care and welfare, for example, organising your medical care, deciding what medical treatment you receive, what you eat on a daily basis, whether you move into a care home and so on.
You can set up one or both.
In Scotland there are two types of lasting power of attorney:
- A continuing power of attorney which enables someone manage your financial affairs.
- A welfare power of attorney which enables someone make decisions about your care and well being.
Here, there is only one type of LPA which is known as an enduring power of attorney. This allows a person to manage all your financial affairs in a similar way to the English property and financial affairs lasting power of attorney. In NI, there is no power of attorney that lets someone make decisions about your health and wellcare.
2. Get signatures from certificate providers
Separate forms will be completed by a ‘certificate provider’ (this can be your doctor) who witnesses to your understanding (capacity) to make an LPA, and by each of the attorneys you have chosen. So you, your attorneys and your witnesses must all sign the forms before they are submitted.
3. Submit forms to OPG
There are some online forms along with guidance that are esay to access when you decide upon creating a lasting power of attorney:
- England and Wales: Office of the Public Guardian
- Scotland: Office of the Public Guardian
- Northern Ireland: Office of Care and Protection
Once the forms have been completed they can be sent back to the agency along with the relevant fee. They will check that the forms have been completed accurately. If you have requested any special rules, such as restrictions or specifications on what the attorney is allowed to do, are practicable.
When filling in the form you will be asked to list the friends or family members who are to be told about your application. This is to give them the opportunity to object. They are able to do so within six weeks of being notified. Should everything go to plan, the whole process will take several weeks
Once registered with the Office of the Public Guardian, it can be used immediately or held in readiness until required. It’s generally recommended that you set up both a personal welfare LPA and a property and financial affairs LPA at the same time.
4. Costs of registering LPA
Drawing up a lasting power of attorney costs nothing if you do it online yourself. If you want the help of a solicitor this will cost you money. In England, Scotland and Wales LPA must be registered before it is acknowledged and legally applicable. In Northern Ireland it can be used without it having been registered and whilst you still have mental capacity, but it must be registered as soon as your mental capacity starts to decline.
- England and Wales: £82 for each lasting power of attorney (so both financial and well being).
- Northern Ireland: £115 for each enduring power of attorney.
- Scotland: £75 for each power if you register them separately.
There is a 6-week notice period for any objections to be raised.
If you earn less than £12,000, you can apply for a reduction on LPA costs. You may also qualify for an exemption if you’re on certain benefits.
Some people prefer to get their Power of Attorney prepared by a solicitor which can prevent mistakes which sometimes cause an application to be rejected. However, the cost of applying through a solicitor is considerably higher: some charge as much as £500, and this is in addition to the £110 OPG fee.
5. Cancelling a lasting power of attorney
You are able to cancel a lasting power of attorney at any time that you still have mental capacity. This should be done by drawing up a written deed of revocation. The GOV.UK website will take you through the process.
If LPA has been registered you will need to tell the Office of the Public Guardian that you intend to revoke it and your entry on the register will be removed.
In Northern Ireland you need to contact the Office of Care and Protection.
If you lose capacity, the lasting power of attorney can only be cancelled with the agreement of the Court of Protection.
Power of attorney automatically ends if:
- the attorney or donor dies
- the attorney or donor becomes bankrupt (depending on circumstances outlined below)
- a marriage or civil partnership between the donor and the attorney is terminated.
- the attorney lacks mental capacity
The Court of Protection can cancel an LPA if an attorney isn’t acting in a person’s best interests such as by making “gifts” to themselves or others.
Authority to act as an Attorney
To act as an attorney, you need certified copies of the original Power of Attorney. These are the only documents accepted by banks and other institutions as proof of your LPA. This prevents any risk of the original (stamped by the OPG) getting lost.
A normal photocopy is not sufficient, unless it has been countersigned by the donor at a time they still had capacity. To be valid, such copies must:
- Have at the bottom of each page: ‘I certify this is a true and complete copy of the corresponding page of the original Lasting Power of Attorney’ written clearly by the donor.
- On the last page of the copy, have written by the donor: ‘I certify this is a true and complete copy of the Lasting Power of Attorney.’ Each page must be signed and dated.
Many solicitors will provide certified copies of the OPG document for a small fee. This can be done even if they didn’t provide the original Power of Attorney.