How to Make a Lasting Power of Attorney: A Guide from I Will Solicitors

Lasting Power of Attorney guide

How to Make a Lasting Power of Attorney: A Guide

A Lasting Power of Attorney (LPA) is a legal document whereby a person (known as the ‘donor’) aged 18 and over can appoint one or more persons (known as ‘attorneys’) to make decisions on his or her behalf when he or she lacks the mental capacity to do so in the future.

The attorneys can make decisions in relation to the donor’s property and financial affairs and/or health and welfare when the donor becomes physically or mentally unable, or if the donor wants someone else to have the authority to manage his or her affairs. An LPA differs from a normal power of attorney because it is still effective when the donor loses mental capacity.

Do I need a financial or healthcare power of attorney?

There are two types of LPAs:

  • Property and Financial Affairs: This allows the attorney to make decisions on the donor’s behalf in relation to his or her property and financial affairs such as paying bills, managing a bank or building society account, collecting income and benefits or selling the home etc. This type of LPA can be used even if the donor has not lost capacity.
  • Health and Welfare: This allows the attorney to make decisions on the donor’s behalf in relation to his or her personal health and welfare such as daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining treatment. This type of LPA can only be used when the donor has lost capacity.

How does a Lasting Power of Attorney work?

  • An application is made to the Office of the Public Guardian (OPG) using LP1F form (for financial and property affairs) and LP1H form (for health and welfare).
  • The application is be certified by a ‘certificate provider’. Solicitors are one of the professional groups permitted to act as a certificate provider.
  • Once the application is complete, the same needs to be registered with the OPG. There is a fee of £82 per LPA for registration; if you require both types of LPA, you will need to pay £164 (£82 x 2). Some people may be eligible for reduction or exemption (please see LPA 120 for more details).
  • An LPA usually comes into effect when a donor loses his or her mental capacity, or if the donor has opted for the option to give power to his or her attorney(s) once registered (this only applies to property and financial affairs LPAs).

 

This video from Age UK explains why Lasting Power of Attorney is so valuable.

Definition of mental capacity

Mental capacity’ refers to a person’s ability to make a specific decision at the time that it needs to be made. For a person to possess mental capacity for an LPA, he or she must understand the decision that is to be made, why it needs to be made and what are the likely consequences of that decision. A person should be able to communicate their decision through speech, signs, gestures or written form.

A person is deemed to lack mental capacity if, at the time of a decision being made, he or she:

  • Has a mental disorder which impedes his or her mind from functioning properly.
  • Fails to understand information regarding a decision that needs to be made.
  • Fails to retain information in his or her mind for long enough to be able to make a decision.
  • Has not weighed up the necessary information in order to make a decision.
  • Is unable to communicate his or her decision in any form.

Who can be an attorney?

  • An attorney must be at least 18 years old. He or she can be a family member, close friend or legal professional.
  • An attorney cannot be bankrupt or have a debt relief order (in the case of LPA for property and financial affairs).
  • An attorney cannot be on the Disclosure and Barring Service’s barred list, unless he or she is a family member and is not receiving a fee to act as the attorney.
  • An attorney should be a trustworthy, reliable and competent person who is likely to make decisions in the best interests of the donor.

Principles of being an attorney

  • An attorney must assume that a donor can make his or her own decisions unless it is established that he or she cannot do so.
  • An attorney cannot interpret a donor as being unable to make his or her own decisions purely because the attorney thinks it is an unwise decision.
  • An attorney must make all decisions in the best interests of the donor.
  • Before making any decision, an attorney must consider whether they can make a decision that is less restrictive of the donor’s rights or freedoms but still achieves the necessary purpose.

Can I choose multiple attorneys?

You may appoint more than one attorney, but the more attorneys you appoint, the less likely it is that they will reach consensus on various decisions. If you choose to appoint multiple attorneys, ensure that they are likely to work together and easily arrive at consensus for important decisions. Any differences of opinion need to be resolved amicably so that the possibility of deadlock is minimised.

If appointing multiple attorneys, you can decide whether they shall act jointly (all decisions must be made collaboratively) or jointly and severally (valid decisions can be made individually as well as collaboratively). If you do not specify whether multiple attorneys shall act jointly or jointly and severally, the authorities will assume that they are to act jointly.

If attorneys are acting jointly and one of them dies or is no longer qualified to act as an attorney, the other attorneys cannot act unless a replacement is made for the departing attorney. You can also stipulate that certain decisions must be made jointly while others can be made severally. In this instance, you must clearly state which decisions fall under which category.

Lasting Power of Attorney forms

What decisions can attorneys make?

The decision-making authority of an attorney is dependent upon the powers granted to him or her in the LPA. Attorneys can make certain decisions relating to the donor’s personal health and welfare, property and financial affairs, or a combination of both.

Health and welfare decisions

  • Granting or refusing consent to healthcare
  • Staying at home and getting help from social services
  • Moving into a suitable residential care home
  • Daily affairs such as deciding what to eat, wear and do

Property and financial affairs decisions

  • Opening, closing and using the donor’s bank or building society accounts
  • Claiming, receiving and using benefits or allowances on the donor’s behalf
  • Paying rent, mortgages and utility bills on the donor’s behalf
  • Making or selling investments
  • Buying or selling the donor’s home

Decisions an attorney cannot make for a donor

  • Consent to marriage
  • Consent to divorce on the basis of three years’ separation
  • Consent to an adoption order
  • Adopting or renouncing a religion
  • Receiving treatment for change of gender
  • Consent to abortion
  • Making or revoking a gift of a body or any part of a body

How to complete Lasting Power of Attorney forms

  1. The donor fills in his or her personal details.
  2. He or she adds the names, addresses and birth dates of all attorneys.
  3. Where there are multiple attorneys, the donor stipulates whether they will act jointly, jointly and severally, or a combination of both. In the latter case, the donor must list the decisions the attorneys are to make jointly and the decisions the attorneys are to make jointly and severally.
  4. The donor specifies when attorneys can make decisions.
  5. The donor can select up to five people to notify when the LPA is registered.
  6. The donor may use the Preferences section to set out any specific requests which may not be covered elsewhere in the form.
  7. All parties in the LPA read their legal rights and responsibilities before signing the form. The donor signs first, followed by the certificate provider and all attorneys/replacement attorneys.
  8. The LPA is sent to the OPG for registration.
  9. The OPG registers LPA(s) and sends back the original.

How much does making a lasting power of attorney cost?

Our charges for preparing an LPA (and registration with the OPG) start from £395 plus VAT for either a Property and Financial Affairs LPA or a Personal Welfare LPA. If you require both types of LPA, we offer a discounted price of £695 plus VAT. Please note that the OPG charges a fee of £82 for registering each LPA.

For further information, you can download our Lasting Power of Attorney fact sheet or contact us with any queries.

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