Arranging a Lasting Power of Attorney.

Lasting Powers of Attorney

A Lasting Power of Attorney, commonly called an LPA, is a legal document that allows a person to appoint one or more trusted people to make decisions on their behalf.

The person making the LPA is called the donor. The people appointed to make decisions are called attorneys.

An LPA can be used to plan for a future time when the donor may be unable to make particular decisions because of illness, injury, dementia, stroke, unconsciousness or another impairment affecting the mind or brain.

A person does not automatically lose control of their affairs by making an LPA. The donor continues to make their own decisions for as long as they have the mental capacity to do so.

This guide covers Lasting Powers of Attorney in England and Wales. Different powers of attorney systems operate in Scotland and Northern Ireland.

Why Make a Lasting Power of Attorney?

Many people assume that a spouse, civil partner, child or other close relative will automatically be able to manage their finances or make medical decisions if they become unable to do so. This is not generally the case.

Without appropriate legal authority, relatives may be unable to:

• access bank or savings accounts;
• pay bills from the person's funds;
• manage investments or pensions;
• deal with tax affairs;
• sell or manage property;
• make decisions about care arrangements;
• deal with medical professionals as the legal decision-maker; or
• make decisions about where the person should live.

An LPA allows the donor to choose who should act, what decisions they may make and whether any instructions or restrictions should apply.

When Should an LPA Be Made?

An LPA can only be made. In contrast, the donor has the mental capacity to understand and approve the document.

It is therefore sensible to consider an LPA before it is urgently needed. A person cannot make an LPA after they have permanently lost the capacity required to understand it.

Making an LPA does not mean that incapacity is expected or imminent. It is a form of planning similar to making a will or arranging insurance.

The Two Types of Lasting Power of Attorney

There are two separate types of LPA:

• a property and financial affairs LPA; and
• a health and welfare LPA.

A person may make either type or both. Each requires a separate form, registration application and Office of the Public Guardian registration fee.

Property and Financial Affairs LPA

A property and financial affairs LPA allows attorneys to make decisions about the donor's money, property and financial arrangements.

Depending on the authority granted, attorneys may be able to:

• manage bank and building society accounts;
• pay household bills;
• collect pensions, benefits and other income;
• complete tax returns and deal with HM Revenue and Customs;
• manage savings and investments;
• deal with insurance policies;
• pay care fees;
• manage or sell property;
• deal with mortgages and other liabilities;
• instruct financial and legal advisers; and
• make limited gifts where legally permitted.

When Can a Financial LPA Be Used?

The donor can choose whether the attorneys may use the property and financial affairs LPA:

• as soon as it has been registered, but only with the donor's permission while the donor retains capacity; or
• only when the donor lacks capacity to make the relevant financial decision.

Allowing attorneys to act while the donor still has capacity can be useful where the donor is physically unable to visit a bank, is abroad, has mobility difficulties or wants assistance managing complex finances.

The donor remains entitled to make their own decisions and can require the attorneys to stop acting. In contrast, the donor has capacity.

Health and Welfare LPA

A health and welfare LPA authorises attorneys to make decisions regarding personal care and medical treatment.

Depending on the document, decisions may concern:

• where the donor should live;
• the donor’s daily routine;
• personal care, washing and dressing;
• diet and meals;
• medical examinations and treatment;
• care-home or supported-living arrangements;
• contact with particular people;
• social and leisure activities; and
• life-sustaining treatment.

When Can a Health and Welfare LPA Be Used?

A health and welfare attorney can only make a decision when the donor lacks capacity to make that particular decision at the relevant time.

The attorneys cannot take control simply because the LPA has been registered or because the donor has received a particular medical diagnosis.

Capacity must be considered separately for each decision. A person may be unable to make a complex decision about medical treatment but remain able to decide what to eat, wear or do during the day.

Life-Sustaining Treatment

The donor must decide whether the health and welfare attorneys should have authority to consent to or refuse life-sustaining treatment.

Life-sustaining treatment means treatment that a healthcare professional considers necessary to sustain the donor's life. It may include:

• major surgery;
• artificial ventilation;
• clinically assisted nutrition and hydration;
• antibiotics for a serious infection;
• resuscitation; or
• other treatment depending on the donor's condition.

The donor must complete the relevant section of the LPA correctly. If authority is not granted, decisions about life-sustaining treatment will be made under the Mental Capacity Act's best-interests framework rather than by the attorneys.

What Is Mental Capacity?

Mental capacity is the ability to make a particular decision at the time it needs to be made.

The Mental Capacity Act 2005 begins with the principle that a person must be assumed to have capacity unless it is established that they do not.

A person must not be treated as lacking capacity merely because they:

• make an unwise decision;
• disagree with their family or professionals;
• have a mental health diagnosis;
• have dementia or a learning disability;
• communicate unusually; or
• need support to understand information.

The Legal Test for Capacity

A person lacks capacity to make a particular decision if, because of an impairment or disturbance in the functioning of the mind or brain, they are unable to make that decision when it needs to be made.

A person may be unable to decide if they cannot:

• understand the information relevant to the decision;
• retain that information long enough to make the decision;
• use or weigh the information as part of the decision-making process; or
• communicate their decision by any means.

Capacity is both decision-specific and time-specific. A person may temporarily lack capacity while unconscious or seriously unwell and later regain it.

Who Decides Whether the Donor Has Capacity?

No single person determines capacity for every purpose.

The person responsible for the particular decision must consider whether the donor has capacity to make it.

For example:

• a doctor may assess capacity to consent to medical treatment;
• a solicitor may assess capacity to give legal instructions;
• a financial institution may consider capacity in relation to a financial transaction; and
• an attorney may need to assess whether the donor can make a particular decision before acting.

Professional medical or legal evidence may be needed where the position is disputed, or the decision is particularly serious.

Choosing Attorneys

An attorney must be aged 18 or over. The donor should choose somebody they trust to act honestly, carefully and in their best interests.

An attorney may be:

• a spouse or civil partner;
• an adult child;
• another relative;
• a friend;
• a solicitor or accountant; or
• another suitable adult.

For a property and financial affairs LPA, a person who is bankrupt or subject to a debt relief order cannot act as an attorney while that restriction applies.

Questions to Consider When Choosing an Attorney

The donor should consider:

• whether the person is trustworthy;
• whether they manage their own affairs responsibly;
• whether they understand the donor's wishes and values;
• whether they are willing to act;
• whether they live sufficiently close to deal with practical matters;
• whether they can work with any other attorneys;
• whether there are likely to be conflicts of interest; and
• whether they have the time and ability to carry out the role.

The role can involve substantial responsibility. The proposed attorney should understand what will be expected before agreeing to act.

Appointing More Than One Attorney

The donor may appoint one attorney or several attorneys.

Where more than one attorney is appointed, the donor must state how they are to make decisions.

Jointly and Severally

Attorneys appointed jointly and severally may make decisions together or individually.

This is often the most practical arrangement because one attorney can handle an urgent or routine matter without requiring all attorneys to sign or attend.

Jointly

Attorneys appointed jointly must make every decision together.

This may provide additional oversight but can cause difficulties if one attorney:

• dies;
• loses capacity;
• becomes unwilling to act;
• cannot be contacted;
• becomes bankrupt in the case of a financial LPA; or
• is removed from the appointment.

Unless suitable replacement arrangements have been made, the whole joint appointment may fail if one attorney can no longer act.

Jointly for Some Decisions and Jointly and Severally for Others

The donor may require attorneys to act jointly for specified important decisions but allow them to act separately for other matters.

The instructions must be clear. Uncertain or contradictory wording may make the LPA difficult to use or prevent its registration.

Replacement Attorneys

The donor can appoint replacement attorneys to serve if an original attorney is no longer able to serve.

A replacement may be needed if an attorney:

• dies;
• disclaims the appointment;
• loses mental capacity;
• becomes bankrupt or subject to a debt relief order where the LPA concerns finances;
• is removed by the Court of Protection; or
• was the donor's spouse or civil partner and the relationship legally ends, unless the LPA states that the appointment should continue.

Replacement provisions should be drafted carefully, particularly where several attorneys are appointed jointly.

Instructions and Preferences

The donor can include preferences explaining how they would like attorneys to act, as well as binding instructions that the attorneys must follow.

Preferences

Preferences may express wishes such as:

• remaining at home for as long as reasonably possible;
• using a particular financial adviser;
• consulting specified relatives before important decisions;
• maintaining particular investments;
• supporting religious or cultural practices; or
• considering a preferred care home.

Preferences guide the attorneys but are not normally legally binding in the same way as instructions.

Instructions

Instructions may require attorneys to:

• obtain professional investment advice;
• produce accounts for another person;
• consult specified people before making a particular decision;
• avoid selling a property unless specified circumstances arise; or
• make certain decisions jointly.

Instructions must be lawful, workable and compatible with the Mental Capacity Act. An invalid or contradictory instruction can delay or prevent registration.

The Certificate Provider

Every LPA must be signed by a certificate provider.

The certificate provider confirms that:

• the donor understands the purpose and effect of the LPA;
• the donor is not being pressured or deceived into making it;
• there is nothing else preventing the LPA from being created; and
• the donor has discussed the LPA with the certificate provider.

The certificate provider does not act as a general decision-maker about whether the donor lacks capacity in the future.

Who Can Be a Certificate Provider?

The certificate provider must either:

• have known the donor personally for at least two years; or
• have relevant professional skills and expertise.

A professional certificate provider may include:

• a solicitor;
• a doctor;
• a registered healthcare professional;
• a social worker; or
• another person with suitable professional knowledge.

Who Cannot Be a Certificate Provider?

A certificate provider cannot be:

• an attorney or replacement attorney under the LPA;
• an attorney or replacement attorney under another LPA made by the donor;
• a member of thedonor'ss family;
• a member of an attorney's family;
• an unmarried partner of the donor or an attorney;
• a business partner of the donor or an attorney;
• an employee of the donor or an attorney;
• the owner, manager, director or employee of a care home in which the donor lives; or
• a family member of a person connected with that care home.

The detailed eligibility rules should be checked before the certificate is signed. Using an ineligible certificate provider can result in the LPA being rejected.

People to Notify

The donor may name people who should be notified when an application is made to register the LPA.

This provides an additional safeguard by giving trusted people an opportunity to raise a concern about:

• fraud;
• undue pressure;
• the donor's understanding;
• an attorney's suitability; or
• another legal problem with the LPA.

Naming people to notify is optional. If people are named, they must be given the prescribed notice when registration is requested.

Signing a Lasting Power of Attorney

The LPA must be signed in the correct order:

• the donor signs first;
• the certificate provider signs after the donor; and
• the attorneys and replacement attorneys then sign.

Each signature must be witnessed in accordance with the form's requirements.

The dates and order are important. Errors can cause the Office of the Public Guardian to reject the application or request corrections.

Registering an LPA

An LPA cannot be used until it has been registered with the Office of the Public Guardian.

The donor can apply to register the LPA while they have capacity. An attorney may also apply to register it.

Registering the document promptly can prevent delays if the donor later becomes seriously ill or loses capacity unexpectedly.

How Long Does Registration Take?

The Office of the Public Guardian currently advises that registration generally takes approximately eight to ten weeks where the application contains no errors.

This includes a statutory waiting period during which objections may be made.

An LPA is not a substitute for immediate emergency arrangements, as it cannot be used until registration is complete.

Registration Fees

The current Office of the Public Guardian fee is £92 to register each LPA.

Registering both types therefore costs £184 in Office of the Public Guardian fees.

These figures do not include anysolicitor'ss fees for advice, drafting, acting as a certificate provider, or submitting the application.

Fee Exemptions and Reductions

The donor may qualify for:

• an exemption, meaning no registration fee is payable; or
• a remission, meaning a reduced fee is payable.

Eligibility depends on the donor's income and entitlement to specified means-tested benefits. It is the donor's finances that are normally considered, even where another person pays the fee.

Can an LPA Be Used Before Registration?

No. Neither type of LPA can be used until it has been registered with the Office of the Public Guardian.

A property and financial affairs LPA may then be used. At the same time, the donor has capacity if the document permits this and the donor agrees.

A health and welfare LPA may only be used when the donor lacks capacity to make the relevant decision.

How Attorneys Must Act

Attorneys must follow the Mental Capacity Act 2005, the LPA and the principles of acting in the donor's best interests.

They must:

• assume the donor has capacity unless shown otherwise;
• support the donor to make their own decisions;
• allow the donor to make an unwise decision where they have capacity;
• act in the donor's best interests when making a decision for them;
• choose the least restrictive reasonable option;
• follow lawful instructions in the LPA;
• consider the donor's wishes, beliefs and values;
• avoid conflicts of interest;
• keep the donor's money separate from their own;
• keep appropriate financial records; and
• keep the donor's affairs confidential.

An attorney cannot use the donor's money for their own benefit merely because they are a relative or expect to inherit.

Best-Interests Decisions

When the donor lacks capacity, the attorney must consider all relevant circumstances and not simply decide what the attorney personally considers sensible.

The attorney should consider:

• the donor's past and present wishes and feelings;
• the donor's beliefs and values;
• any written statement of wishes;
• whether the donor may regain capacity;
• whether the decision can wait;
• how the donor can participate;
• the views of relevant relatives, carers and professionals; and
• whether a less restrictive option is available.

The decision must be made for the donor's benefit, not for the convenience or financial advantage of the attorney or other family members.

Gifts Made by Attorneys

An attorney's authority to make gifts is limited.

Without specific Court of Protection approval, an attorney may generally make only limited gifts:

• on customary occasions such as birthdays, weddings or religious festivals; or
• to charities the donor supported or might reasonably have supported.

The value must be reasonable in relation to the donor's financial circumstances.

Substantial gifts, tax-planning arrangements, transfers of property, interest-free loans and gifts intended to reduce care fees may require permission from the Court of Protection.

Selling the Donor's Property

A property and financial affairs attorney may be able to sell the donor's home if the LPA provides sufficient authority and the sale is in the donor's best interests.

The attorney should consider:

• whether the donor has capacity to decide;
• the donor's wishes;
• whether the property may be needed again;
• alternative ways of funding care;
• the appropriate sale price;
• conflicts of interest;
• independent valuation and legal advice; and
• whether Court of Protection approval is required.

An attorney purchasing the property personally, selling it to a relative at less than market value or making another self-interested transaction may require court approval.

Can an Attorney Make or Change a Will?

An attorney cannot make or alter the donor's will merely under the authority of an LPA.

If the donor lacks testamentary capacity and a will needs to be made or changed, an application for a statutory will may be made to the Court of Protection.

Can an LPA Be Changed?

Once an LPA has been signed and completed, the donor cannot simply amend it by crossing out wording or attaching informal instructions.

Some limited changes, such as an attorney's address, can be reported to the Office of the Public Guardian.

Substantial changes usually require the existing LPA to be revoked and a new one created while the donor still has capacity.

Ending or Revoking an LPA

The donor may revoke an LPA. In contrast, they have the capacity to do so.

An LPA may also end or partly fail where:

• the donor dies;
• the sole attorney dies or can no longer act and no replacement is available;
• an attorney disclaims the appointment;
• a financial attorney becomes bankrupt or subject to a debt relief order;
• the donor and attorney divorce or end their civil partnership, unless the document states otherwise;
• the Court of Protection removes an attorney; or
• the appointment structure no longer allows the remaining attorneys to act.

An LPA ends automatically when the donor dies. After death, authority passes to the personal representatives dealing with the estate.

Concerns About an Attorney

Concerns about an attorney may include:

• unexplained withdrawals;
• gifts to themselves or relatives;
• failure to pay the donor's bills;
• selling property below market value;
• preventing appropriate contact with family;
• ignoring the donor's wishes;
• failing to keep records;
• using the donor's assets for personal purposes; or
• making decisions when the donor still has capacity.

Concerns can be reported to the Office of the Public Guardian. It may investigate and, where necessary, apply to the Court of Protection.

The Court can require accounts, suspend or remove an attorney, cancel an LPA and make protective orders. Serious financial abuse may also be reported to the police, the local authority safeguarding team, or a financial institution.

Enduring Powers of Attorney

Enduring Powers of Attorney, known as EPAs, were replaced by LPAs in October 2007.

A new EPA can no longer be made. However, an EPA validly signed before 1 October 2007 may still be used.

An EPA only covers property and financial affairs. It does not grant authority over health or welfare decisions.

An attorney must apply to register an EPA when the donor is becoming or has become mentally incapable of managing their financial affairs.

Ordinary Powers of Attorney

An ordinary or general power of attorney can authorise another person to deal with specified financial matters while the donor has capacity.

It may be useful where a person:

• is temporarily abroad;
• is physically unwell;
• needs assistance completing a transaction; or
• wants somebody to act for a limited period.

An ordinary power of attorney usually ends if the donor loses mental capacity. It is therefore not a substitute for a registered LPA where future incapacity needs to be addressed.

What Happens if There Is No LPA?

If a person loses capacity without making a valid LPA or earlier EPA, somebody may need to apply to the Court of Protection for authority to make decisions.

For financial matters, this will commonly involve an application to become a property and financial affairs deputy.

The Court decides:

• whether the person lacks capacity;
• whether a deputy is required;
• who should be appointed;
• what powers the deputy should have; and
• what supervision and security arrangements should apply.

Deputyship

A deputy is appointed by the Court of Protection after a person has lost capacity. This is different from an attorney, who is chosen in advance by the donor.

The deputyship process may require:

• a Court of Protection application;
• a formal capacity assessment;
• details of the person’s finances and circumstances;
• notification of specified relatives and other people;
• a declaration of suitability by the proposed deputy;
• a court application fee;
• a security bond in financial cases;
• an Office of the Public Guardian assessment fee;
• annual supervision fees; and
• regular accounts and deputy reports.

The process is normally more expensive, supervised and time-consuming than making an LPA in advance.

Current Deputyship Fees

The current Court of Protection application fee is £CourtA separate fee may be payable if the Court decides that a hearing is required.

Property and financial affairs deputies may also have to pay:

• a one-off Office of the Public Guardian assessment fee;
• annual supervision fees;
• the cost of a security bond;
• legal and professional fees; and
• other expenses involved in managing the person's affairs.

Fee exemptions or reductions may be available depending on the financial circumstances of the person whose affairs are being managed.

Health and Welfare Deputies

The Court of Protection appoints health and welfare deputies less frequently than financial deputies.

The Court often prefers to decide serious welfare disputes individually rather than grant one person broad, continuing authority over another adult's health and care.

LPA or Deputyship?

The principal differences are:

• an attorney is chosen by the donor, while Courtuty is selected and appointed by the Court;
• an LPA is made while the donor has capacity, while deputyship is generally required after capacity has been lost;
• an LPA allows the donor to record wishes and restrictions;deputyship usually involves greater Court and Office of the Public Guardian supervision;
• deputyship is commonly more expensive; and
• a deputy may have more limited powers than an attorney appointed under a carefully prepared LPA.

Do You Need a Solicitor to Make an LPA?

A solicitor is not legally required. The official forms can be completed without legal representation.

However, legal advice may be useful where:

• the donor has complex financial affairs;
• there are business or farming assets;
• the donor owns property jointly or overseas;
• family relationships are difficult;
• there is concern about undue influence;
• capacity may later be disputed;
• the donor wants detailed instructions or restrictions;
• attorneys are to act in different ways for different decisions;
• tax planning or substantial gifts may be relevant;
• there is a potential conflict between attorneys;
• the donor wants professional attorneys; or
• the LPA must interact with a will, trust or advance decision.

A solicitor can explain the consequences of the document, help avoid invalid provisions and retain a record of the donor's instructions and capacity.

Lasting Powers of Attorney and Wills

An LPA operates during the donor's lifetime. A will takes effect after death.

Making an LPA does not replace the need for a will, and making a will does not give executors authority to act while the person is alive.

The two documents should be considered together, particularly where attorneys may manage assets that are specifically gifted under the will.

Lasting Powers of Attorney and Advance Decisions

An advance decision allows an adult with capacity to refuse specified medical treatment for a future time when they may lack capacity.

A health and welfare LPA and an advance decision can affect each other. The legal result may depend on:

• which document was made later;
• what treatment is covered;
• whether the advance decision is valid and applicable; and
• whether the attorneys were given authority over life-sustaining treatment.

Legal advice can help ensure that the documents do not conflict.

Using a Registered LPA

An attorney may need to provide evidence of the registered LPA to banks, healthcare providers, local authorities and other organisations.

Depending on the date and type of registration, the attorney may be able to use the Office of the Public Guardian's online service to provide an access code allowing an organisation to view details of the LPA.

Some organisations may still require a certified paper copy or an Office of the Public Guardian office copy.

How a Lasting Power of Attorney Solicitor Can Help

A solicitor may assist with:

• explaining the two types of LPA;
• assessing and recording the donor's instructions;
• advising on the choice of attorneys;
• drafting preferences and instructions;
• acting as certificate provider where appropriate;
• completing and checking the forms;
• applying for registration;
• advising attorneys about their duties;
• revoking or replacing an LPA;
• investigating suspected abuse by an attorney;
• applications to the Court of Protection;
• deputyship applications;
• statutory wills;
• advance decisions; and
• disputes concerning capacity or best interests.

Finding a Lasting Power of Attorney Solicitor

A Lasting Power of Attorney allows you to choose who should protect your interests if you later require assistance or lose capacity. Without one, relatives may need to apply to the Court of Protection before they can manage your affairs.

Use the search facility at the top of this page to find a solicitor who can advise on Lasting Powers of Attorney, mental capacity and Court of Protection applications.

This guide provides general information about Lasting Powers of Attorney in England and Wales. It does not constitute legal advice and should not be relied upon as a substitute for advice about your individual circumstances.