Guide to Lasting Power of Attorney

There are two types of Lasting Powers of Attorney (LPA)

1. Lasting Power of Attorney for property and financial affairs

The first is a: Lasting Power of Attorney for property and financial affairs and gives the attorney authority to act in relation to the donor’s (the person making the LPA) property and financial affairs in much the same way as an Enduring Power of Attorney (EPA) did, once the LPA has been registered with the Office of the Public Guardian.

2. Lasting Power of Attorney for health and welfare

The second type of Lasting Power of Attorney for health and welfare relates to healthcare and personal welfare. In this document the donor gives the attorney authority to make decisions about their health and welfare such as: the choice of nursing or residential home, what clothes the donor should wear, what food the donor should eat and who should and should not visit the donor; once the LPA has been registered with the Office of the Public Guardian and the donor has lost capacity to make the decision in question.

Choice of attorney or attorneys

The donor should choose someone they can trust and the attorney or attorneys should be equipped with the powers that may be needed in the future. The attorney must be over 18 and must not be an undischarged or interim bankrupt person. You can appoint one or more attorneys. They must agree to be your attorney and sign the LPA. They must act according to the Principles laid down in the Mental Capacity Act 2005 in the donor’s best interest as set out in the Act and follow the guidance contained in the Code of Practice.

You can appoint your attorneys to work jointly in relation to all decisions, jointly and severally in relation to all decisions or jointly in respect of some matters and jointly and severally in respect of others. For example you may wish to appoint your attorneys to act jointly in relation to selling your house but jointly and severally in respect of dealing with your day-to-day finances. It is now also possible to appoint replacement attorneys should your original attorney die or become incapable of acting as your attorney.

Limits on an attorney's powers

A donor is able to restrict or limit the occasions when the attorney should act for them or they can give attorneys general authority to act on their behalf in relation to all the donor’s property and affairs. The donor is also able to give the attorney guidance, for example on how they would like their finances dealt with. Or in relation to a Lasting Power of Attorney for health and welfare, such as what treatments the donor might prefer not to have, or where the donor may want to live.

Registration of the Lasting Power of Attorney

The donor is asked to choose up to five people to be notified when the LPA is to be registered with the Office of the Public Guardian. Once registered the attorney has authority to act. The attorney has no authority to act under an LPA until it is registered. This differs to the previous situation with EPAs.

Protection of the donor’s Interests

Before registration is carried out the people named on the LPA will be notified by the donor or their attorneys of the impending registration. On the basis that there are no objections to the registration process the document will be registered and the attorney will then have full authority to act.

Certificate Provider

When preparing either type of LPA there must be a Certificate Provider. Without the Certificate Provider’s statement and signature, the Power cannot be registered or used.

There are two types of Certificate Provider namely skills based or knowledge based.

A Certificate Provider must be someone of your choice and be over 18 years of age.

They cannot be: -

  • a member of the donor’s family;
  • a family member of any of the appointed Attorneys;
  • the donor’s business partner or paid employee;
  • any attorney appointed by the donor under the LPA or another LPA or EPA;
  • the owner, manager or employee of a care home in which the donor is living;
  • or their family member or partner and
  • a director or employee of a trust corporation appointed by the donor as attorney.

If we, acting as your solicitors, are not appointed as attorneys, we can act as your Certificate Provider.

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