Lasting Power of Attorney FAQ and Guide
What is a a lasting power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you (the ‘donor’) to give one or more persons (the ‘attorney(s)’) the legal authority to make decisions on your behalf if you lose the mental capacity to do so in the future, or if you no longer want to make decisions for yourself. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions i.e. when you no longer have ‘mental capacity’.
What is the difference between a Lasting Power of Attorney and an Enduring Power of Attorney?
An LPA is different to an Enduring Power of Attorney (EPA). EPA’s only relate to financial matters and do not cover medical decisions. It allows the attorney to make decisions on the donor’s behalf, but does not stop the donor making these decisions themselves. If the donor becomes mentally incapable of managing affairs themselves, the power given to the attorney “endures” through the donor’s illness so that the attorney can carry on dealing with the finances on the donor’s behalf.
It is no longer possible to make this type of Power of Attorney as they were replaced by LPAs on 1st October 2007, however EPAs that were made prior to this date will still be valid and will remain so until cancelled or until the death of the donor. We recommend anyone with an EPA to review the document to ensure it still meets their needs.
When should I make an LPA?
An LPA is different to an Enduring Power of Attorney (EPA). EPA’s only relate to financial matters and do not cover medical decisions. It allows the attorney to make decisions on the donor’s behalf, but does not stop the donor making these decisions themselves. If the donor becomes mentally incapable of managing affairs themselves, the power given to the attorney “endures” through the donor’s illness so that the attorney can carry on dealing with the finances on the donor’s behalf.
It is no longer possible to make this type of Power of Attorney as they were replaced by LPAs on 1st October 2007, however EPAs that were made prior to this date will still be valid and will remain so until cancelled or until the death of the donor. We recommend anyone with an EPA to review the document to ensure it still meets their needs.
What is mental capacity?
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.
What happens when we lose mental capacity?
In England, Wales, Scotland and Northern Ireland, when an individual loses their capacity, they automatically lose control over decisions that involve their finances and wellbeing. There are specific rules in place for each jurisdiction, but broadly whilst many might think that a spouse or family member automatically gains control of your affairs, this is not the case.
Who has the authority to look after your affairs if there is no LPA in place?
In England and Wales, the Court of Protection will look to appoint a Deputy if there is no prior instruction in place. A family member can apply to the court to be a Deputy, and if acceptable to the court, the court will lay out the actions the Deputy can take and what records need to be provided to the court on a regular basis. Scotland and Northern Ireland have a similar process. The main handicaps to relying on the courts are costs and the paperwork involved. More information on the steps and costs involved can be found here.
Are there different types of LPA?
There are two types of LPA - a Lasting Power of Attorney in relation to your property and financial affairs (e.g. bank accounts, stocks and shares, house, benefits etc.) and a Lasting Power of Attorney in relation to your health and welfare (e.g. making medical/welfare decisions).
LP1F: Property and Financial Affairs
property such as:
- Managing your bank or building society account(s)
- Collecting your benefits or pension
- Paying your bills
- Selling your home
A Property and Financial Affairs LPA can be used as soon as it’s registered (with your permission).
LP1H: Health and Welfare
his LPA can be used to give an attorney the power to make decisions about things such as:
- Your daily routine - washing, dressing, eating etc.
- Your medical care
- When to move into a care home
- Life-sustaining treatment
A Health and Welfare LPA can only be used when you’re unable to make your own decisions.
What is Section 5 of a Health and Welfare LPA?
This is the life sustaining treatment page of the LPA. You will need to confirm here what sort of treatment you want or not, including feeding tubes, resuscitation and other medical treatments. Nothing illegal can be put here such as assisted dying. If this page is not completed the LPA will be invalid and a new form will then need to be completed before registration takes place. When placing an order for LP1H, our team will be in contact to help you in drafting this document so we can ensure your wishes are documented.
Can I have both types of LPA and would my attorneys have to be the same?
Yes, you can have one or both types of LPA. They are independent of each other so you could appoint different attorneys if you wished to do so.
Can an LPA be challenged?
Disagreements around LPAs sometimes arise among family members. This may be because there is a concern that donor is not making an informed choice about who they are appointing as attorney. Disputes also sometimes occur when other family members or friends do not believe the attorney is acting in the donor’s best interests. For example, if the attorney is spending money on the donor’s behalf or making key decisions about their health and welfare.
You can object to an LPA prior to its registration, and must tell both the Office of Public Guardian (OPG) and Court of Protection. How you object depends on who you are and why you’re objecting. If you have any concerns about a family member’s LPA, we recommend you seek professional legal advice.
Who can be an Attorney?
Anyone over the age of 18 who has the ability to understand the responsibility of becoming an attorney. If you’re looking for someone to help with your finances, we recommend you choose someone with a good history of managing money. If that person has been declared bankrupt, they won’t be able to act as a property and finance attorney, but can still act as a health and welfare attorney. You should always choose people you trust such as a friend, neighbour, partner or child. Some people may not want to appoint a friend or family member, so it is possible to also appoint a professional, such as a solicitor, to be your attorney.
When can an Attorney act?
A Health and Care attorney can only act when the Donor loses capacity. A Property and Financial attorney can act before or after the Donor loses capacity, unless the Donor specifies that the attorney cannot act until he or she has lost capacity.
How many Attorneys can I have?
You can have as many attorneys as you wish but it is usual to have between one and four. If you have more than one, you can also say how you want them to work together.
Can I appoint replacement Attorneys?
Yes. You may appoint replacement Attorneys to be able to act if the original Attorneys cannot act. You may also specify when the replacement Attorneys can step in and act, and if they are to replace a specific Attorney or only step in if all of the original Attorneys become unable to act. It is not mandatory for you to have a replacement attorney should you not wish to do so, however, having a replacement would be advisable.
What if my Attorney Dies?
If your attorney passes away before registration, you can make a new LPA and choose a new attorney only if you have the capacity. If your attorney passes away after registration and if you only have one attorney and no replacement attorneys, then your LPA becomes invalid. If you have a replacement attorney then they will take over.
How much authority do my Attorneys have?
An attorney must only make decisions that they have been given the authority to make. This means that:
- They cannot make a decision individually, if the LPA specifies decisions must be made jointly
- They cannot make a decision about someone’s health and welfare if the donor has the mental capacity to make it themselves
Can I restrict my Attorneys’ powers?
It is possible within the LPA document to place restrictions on how your attorneys act for you. You can restrict the types of decisions your attorney can make, or let them make all decisions on your behalf. If you're setting up an LPA for financial decisions, your attorney must keep accounts and make sure their money is kept separate from yours. You are able to leave specific instructions for your attorneys in your LPA on what they should and should not do.
Can I specify guidance for how I want my Attorneys to act for me?
The LPA allows you to set out guidance for your attorneys. This is optional and is not binding but, if there are potentially difficult decisions, it may be helpful to your attorneys to know your preferences in advance. Section 7 of the LPA allows you to leave specific guidelines for your attorneys on how you’d prefer them to make decisions, or give them specific instructions which they must follow when making decisions. This is important if you wish all decisions are made according to the Shariah, so we recommend you make use of this section.
Can my Attorneys put me into a Nursing Home?
Attorneys under a Health and Welfare LPA can decide to place you into residential accommodation providing, in all the circumstances, they are satisfied that it would be in your best interests. Attorneys under a property and financial affairs LPA cannot, although they do have the power to use your funds to fund any care, whether this is administered at your home or in a care home.
When will my Attorneys be unable to act?
Attorneys’ powers cease on their bankruptcy, incapacity and (their own) death. Their powers also cease on the death of the Donor. Attorneys do not have authority to administer the estate of a Donor who has died.
I have an LPA but have moved or my attorney has moved can I update my address?
Do not make any amendments to the LPA form as this will invalidate it. The OPG will need to be notified of any change of addresses. To do this you will need to write to the OPG including the reference number, Donors full name and DOB. The OPG will then update their system. Third parties will also need to be informed of any change of address for any persons named in the LPA’s.
Can I stop being an Attorney?
You can choose to stop acting as an attorney at any time. If the LPA is registered you will need to complete form Lasting Power of Attorney 005 disclaiming your appointment and send this to OPG.
When does an LPA take effect?
An LPA cannot ‘work’ until it is registered by the OPG and this must occur whilst you still have the mental capacity. Registration in itself does not mean that the individual in question has lost capacity. They can carry on making decisions in the usual way, despite registration, until such time as capacity is lost.
When do I register my LPA?
You can register your LPA as soon as it is properly executed. There can be a significant time delay between sending off the documents to be registered and receiving the registered LPA. Accordingly, we advise clients to register the LPA before it is needed so as to avoid any inconvenience later – for example if a Donor suffers a stroke and loses capacity ‘overnight’, it may be necessary for the Attorneys to act immediately to manage the Donor’s finances, but if the power has not been registered they will be forced to wait before they can do anything.
How much does it cost to register my LPA?
It costs £82 to register each LPA unless you get a reduction or exemption. This means it costs £164 to register both a property and financial affairs LPA and a health and welfare LPA.
You can apply for a reduction if you earn less than £12,000. You might also be able to apply for an exemption if you’re on certain benefits, such as Income Support. For further information about eligibility and the application form please click here.
How can I pay?
You can pay by:
- Credit or debit card
- Cheque
You will have to make your cheque payable to ‘Office of the Public Guardian’ and write your name on the back. Send it to Office of Public Guardian with your forms.
How long does it take to register an LPA?
It takes up to 20 weeks to register an LPA if there are no mistakes in the application. You can apply to register your LPA yourself if you’re able to make your own decisions. Your attorney can also register it for you. You’ll be told if they do and you can object to the registration.
Do I need to notify anyone when I register my LPA? If so, who can be the notified party?
You don’t have to choose anyone to notify. If you do, that person has the right to see the LPA before it is registered, and to object to it. This is a safeguarding measure and allows the notified person to get involved if they are suspicious of what is happening. If however there is nothing untoward, the notified person need do no more than simply read the notice.
The notified party can include anyone other than an attorney or replacement attorney. It is often a relative or a friend, but it could be your solicitor, doctor, financial adviser etc. You can choose up to five parties to be notified if you wish. People to notify can object to the LPA, but only for certain reasons (listed in the notification form LP3). After that, they are no longer involved in the LPA.
Who and what is a Certificate Provider?
A certificate provider is a person who certifies that you have the sufficient mental capacity to make the LPA and that you are not being unduly influenced by a third party to make it. It can be a professional who has the relevant expertise to make the assessment (i.e. a Doctor or Solicitor) or someone who has known you for more than two years. If anyone were to challenge your LPA on the basis that they thought you did not have the mental capacity to make one or that you were making it under duress, your certificate provider would have to show why they thought differently.
Who can be a witness to my signature?
The witness must be at least 18 years old and entirely independent – i.e. not anyone who is a party to the LPAs or a member of their family. A neighbour or work colleague is usually ideal, so long as they are not themselves a party to the LPAs. The witness can be the same person as your certificate provider.
Why use IslamicFinanceGuru?
We are committed to delivering the very best possible service at a competitive price. We work closely with clients to take the strain out of the legal process and aim to provide peace of mind during what can be a very stressful time. Our team of experts will draft the LPAs and will guide you along the journey, answering any queries you may have. For details on the different types of packages we provide for the LPA, please click here.
We recommend you complete your LPA alongside your Islamic Will. Our team work diligently to make sure we are providing you with the best experience possible.
Where can I find further information?
We recommend you visit the following two useful sites for extra help and assistance: