Guide to Lasting Power of Attorney
A Lasting Power of Attorney is a document whereby certain powers are given by an individual (a “donor”) to one or more other individuals (“attorney” or “attorneys”), so that they can carry out acts in connection with property and finances on the donor’s behalf. To find out more please (0115) 9247024 or by email email@example.com.
Two types of lasting power are available: Lasting Power of Attorney, Property and Financial Affairs and Lasting Power of Attorney, Health and Welfare.
We can deal with a Lasting Power of Attorney for a fixed fee of £240.00 including VAT. The cost will be £420.00 including VAT if both are required. For details of the Court Fees please see our Lasting Power of Attorney FAQs.
Frequently Asked Questions about Lasting Power of Attorney
What type of LPAs are there?
There are two types:
A Health and Welfare LPA
This covers decisions as to where to live, daily care medical treatment.
Property and Financial Affairs LPA
This is where decisions need to be taken about the finances and it is about this type of LPA that this guide is about.
What is the purpose of an LPA?
The purpose of an LPA is to provide a person or persons chosen by you who can assist in your financial affairs if you become mentally incapable of doing so.
If I become mentally incapable and I do not have an LPA, how would my affairs be dealt with?
The only way of dealing with your affairs would be to place them in the hands of the Court of Protection. An application would have to be made.
Can an individual make an LPA if they are mentally incapable?
No, at that point it is too late.
What must I take into account in deciding whom to appoint as an attorney or attorneys?
There is quite a lot that you need to take into account. Probably the first and most important thing is whether you can trust those people who you are appointing as attorneys and whether they are competent to carry out the work that they may have to do. An attorney would have to be entirely honest since, if not, clearly the opportunities for fraud or theft are there.
How many people can I appoint as an attorney?
You can appoint as many as you like. However, you should not appoint too many because otherwise it can become somewhat cumbersome. Equally in our opinion, you should appoint more than one because if you only have one and that person can’t or wont act, for whatever reason, the LPA may become invalid.
Can I limit the powers of the attorney?
Yes you can. There can be a number of restrictions.
Can you provide an example of restrictions on attorneys?
Yes. An attorney would be bound by restrictions and the following might be considered:
- Not to buy property on your behalf.
- Not to invest in anything other than, say, bank or building society accounts or cash ISAs.
- Not to invest in certain types of investments e.g stocks and shares.
Can I provide guidance for attorneys and how does that differ from restrictions?
Yes you can provide guidance. The difference between that and a restriction is that a guidance does not bind the attorneys but is an indication as to what they should so and hopefully they should respect that.
Can you provide examples as to the type of guidance?
The following might be considered:
- Only invest in ethical investments
- To consult certain people as to the management of your affairs but without being bound by them.
I have decided on my attorneys and on any guidance or restrictions. What else do I need to consider in relation to them?
On the assumption that you are appointing more than one, you have to consider whether you are appointing them to act on a joint basis, on a joint and several basis or joint basis as to some matters and joint and several as to other matters.
What do you mean by this?
We mean the following:
- If they are appointed to take decisions on a joint basis that mean the attorneys can only decide on matters if they are all agreed. The disadvantage of that is they may not all agree and one may be unreasonable or may not be traced. Ultimately if they can’t agree then the LPA must finish.
- The second way is a joint and several basis whereby as well as acting jointly, each can act individual. The advantage of that is that one person can take a decision on your behalf. The disadvantage is that if that person is not honest or competent the wrong decision can be taken.
- The third way is to have a situation whereby everybody has to agree on a joint basis and perhaps this is on the most important matters and then on a joint and several bases on less important matters. You may consider this as a worthwhile compromise.
What sort of things should an attorney under an LPA carry out?
Subject to any restrictions or guidance in the LPA an attorney should generally deal with the following:
- Open and close and deal with money and bank accounts;
- Claim and receive benefits
- Buy and sell property, although this is probably going to be relatively rare
Can an LPA be made by more than two people?
No, each individual has to make a single LPA.
How old do I need to be before I can make an LPA?
You need to be at least 18. There is no upward age.
I have an LPA. I wish to make a second one. Will the second one replace the first one?
It will but only if you have the mental capacity to make a second LPA.
If I die, does the LPA remain in force?
No. An LPA automatically ends on the death of the donor (maker) of the LPA.
Can my attorney under a property and affairs LPA make decisions as to my personal welfare?
No they can’t. To do this you would need to make a personal welfare LPA.
Can an attorney decide where I live?
Under a Property and Financial affairs property and affairs LPA no.
Am I required to tell anybody about the application?
No, but if you do not there is a disadvantage in that you have to obtain two certificate providers (certificate providers are dealt with below).
How many people can I inform as to the LPA?
You can choose up to 5 people who can be told about it.
Why is there such a provision?
The reason why there is a provision for donors, i.e. people making LPAs to tell people is as a safety device in case there may be fraud or duress involved before the LPA has been made.
What are certificate providers?
Each LPA requires endorsement by a certificate provider who can confirm that:
- You understand the LPA
- You have not been put under pressure and no fraud is involved in the LPA
Who can be a certificate provider?
Somebody who has known you if you are making an LPA for at least two years or somebody who has the skills and knowledge to form a judgement that you are able to make an LPA.
Can you tell me who might have the relevant professional skills?
Yes. The following could be considered:
- A registered healthcare professional (normally a doctor)
- Solicitor, barrister or advocate
- Registered Social Worker
- Independent mental capacity advocate
- Somebody else who has the relevant professional skills
Can family members be certificate providers?
No. Family members, unless very distantly related, cannot be certificate providers.
Can cohabitees be certificate providers for the other party?
Does my attorney have to sign the LPA?
Yes they do.
Can the LPA be used before it is registered?
No. The LPA does require registration before it can be used.
Does an LPA have to be registered?
For it to have any legal effect it must be registered with the Office of the Public Guardian www.publicguardian.gov.uk.
What is the fee for registering an LPA?
The fee is £120.00.
In what circumstances would the person making the Power of Attorney be exempt from the fee of £120.00?
You are eligible for fee exemption if you receive the following means tested benefits and you have not received damages of more than £16,000.00, which were disregarded when obtaining eligibility for the benefit:
- Income Support
- Income based Employment and Support Allowance
- Income based Job Seeker’s Allowance
- Pension Guarantee Credit element of State Pension Credit (you will not be eligible if this is calculated as nil)
- A combination of Working Tax Credit and either Child Tax Credit, Disability Element Working Tax Credit or Severe Disability Element (within the Working Tax Credit).
This does not include Disability Living Allowance or Invalidity Benefit;
- Housing Benefit or Council Tax benefit (not the 25% single person reduction)
- Local Housing Allowance
I am not exempt from paying the £120.00, is it possible that it could be reduced?
Yes. The fee could be reduced or remitted from your income (essentially defined as your gross income) is under £16,500.00. Under that amount you will receive the following remission: