Lasting Power of Attorney Guide
What is 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 is key, as it 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’.
Additionally, 1 in 11 people over the age of 65 have dementia in the United Kingdom, something which may be very relevant to your parents and grandparents now or in the future. The LPA document caters to these needs as well, and enables you, your parents or grandparents to have more control over what happens to your finances, property, and health and care decisions whilst you progressively age.
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 authorises the attorney to make choices on the donor's behalf but does not exclude the donor from making these decisions on their own. If the donor becomes incapacitated mentally of handling his or her own affairs, the authority granted to the attorney "endures" the donor's sickness, allowing the attorney to continue dealing with the donor's capital.
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.
An LPA isn’t something just for older people in poor health to consider.
Unfortunately, any of us can have an accident or illness at any age that can leave us temporarily or permanently debilitated.
Anyone can make an LPA in case they ever lose mental capacity, particularly as one progressively ages and may be at risk of things like dementia, of which 1 in 11 people over 65 in the United Kingdom are affected with.
You should also make an LPA if you have been diagnosed with, or think you might develop, an illness which might prevent you from making decisions for yourself at some time in the future.
The kinds of illness which might prevent you from making decisions for yourself include (but not limited to):
- Dementia
- Mental health problems
- Brain injury
- Alcohol or drug misuse
- The side-effects of medical treatment
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 involves their finances and wellbeing.
There are specific rules in place for each jurisdiction, but while many people believe that a spouse or family member immediately takes control of your affairs, this is not the case.
Your family would have to pay a £371 application fee to the HM Courts and Tribunals Service and an additional £494 if the court decides that your case needs a hearing. Your family will also have to appoint a ‘security bond’ for property and financial affairs, adding to the costs which your family will incur.
Despite paying all these fees, there is still the risk that your family’s application may be rejected. This leaves your financial, property, and health and care decisions outside of your control.
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 accepted, the court will outline what responsibilities the Deputy may undertake and the records that must be supplied 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 care decisions (e.g., making medical/welfare decisions).
LP1F: Property and Financial Decisions
This LPA can be used to give an attorney the power to make decisions about your money and 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 Care Decisions
This 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 Care Decisions 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 be asked to clarify your preferences for treatment, such as feeding tubes, resuscitation, and other medical procedures. Nothing unlawful, such as assisted suicide, can be included. If this page is not completed, the LPA will be deemed invalid, and a new form will be required before registration can take place.
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 the 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 searching for someone to help you with your finances, we recommend going with someone who has a track record of managing money. However, please note that if any individual has been declared bankrupt, they will no longer be able to act as a property and finance attorney, but they will still be able to work 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 designate a friend or family member as their attorney, thus you can alternatively appoint a professional, such as a solicitor.
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 indicate when the replacement attorneys can step in and act, as well as whether they are to replace a specific attorney or only act if all of the original attorneys are 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 limit the sorts of decisions your attorney can make on your behalf, or you can allow them to make all decisions on your behalf.
If you create an LPA for financial matters, your attorney must keep records and ensure that their funds are kept separate from yours. In an LPA, you can leave specific instructions for your attorneys 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 would 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 render it invalid.
Any change of address must be reported to the OPG. To do so, write to the OPG and provide the reference number, Donor's complete name, and DOB. The OPG's system will then be updated. Third parties must also be notified of any change of residence for any individuals specified in the LPAs.
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 of 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 delays 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 can cost up to £164 to register both a property and financial affairs LPA and a health and care decisions 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 for my LPA?
You can pay by:
- Credit or debit card
- Cheque
If you opt for cheque, you will have to make your cheque payable to ‘Office of the Public Guardian’ and write your name on the back and 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 anymore 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 precautionary measure that permits the person who has been alerted to intervene if they suspect something is wrong. If, however there is nothing untoward, the notified person need do no more than simply read the notice.
Anyone other than an attorney or a replacement attorney might be named as the notified party. It's usually a relative or a friend, but it might also be your solicitor, doctor, or financial adviser. You have the option of notifying up to five parties. People who have been notified may object to the LPA, but only for certain grounds (as indicated in notice 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 someone were to dispute your LPA on the grounds that they believed you had the mental capacity to form one or that you were acting under duress, your certificate provider would have to explain why.
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: