A power of attorney is a legal document where a person gives another person or persons (the attorney) authority to make certain decisions on his or her behalf.
From 1st October 2007, you are able to make a new type of power of attorney, called a 'lasting power of attorney' (LPA).
- Types of LPAs
There are two types of LPAs:
- A property LPA, which allows your attorney authority to deal with your property and finances, as you specify.
- A welfare LPA, which allows your attorney to make welfare and health care decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
- Your attorney
As with any power of attorney, it is an important document and you should take care whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions.
If you appoint more than one attorney, you can appoint them to always act together (jointly) or together or separately (jointly and severally). You may even appoint them to act jointly for some things and jointly and severally for others, although this should only be done with advice, as it may cause problems when using the power.
You may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.
- When can the attorney act?
The attorney will only be able to act when the LPA has been signed by you and your attorney, and certified by a person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. The LPA must then be registered with the Office of Public Guardian before it can be used.
A property LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision. The welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
- Existing enduring powers of attorney
An enduring power of attorney (‘EPA’)made before 1st October 2007 will continue to be able to be valid in respect of your property and affairs. You will not be able to make or vary existing EPAs after that date, but you will be able to revoke them. The procedure for registering EPAs on the donor’s mental incapacity continues to apply
EPAs only relate to property and affairs, so if you want to appoint an attorney to make welfare and medical decisions for you, you will need to sign a new welfare LPA.
- What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person (a deputy) to make decisions on your behalf. This is both costly and time consuming.
Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes, you can give a person authority to make those decisions on your behalf by making a welfare LPA.
LPAs need to be registered with the Office for the Public Guardian before your attorneys can act. When should it be registered?
You don't pay the registration fee until the LPA needs to be used.
You pay the fee even if you do not need the LPA to be used immediately.
The registration process delays the use of the power by a number of weeks, at a time when it needs to be used.
There is no scope to use the LPA during this process and if the attorney needs to make decisions urgently, they will need to apply for a Court order.
As soon as the LPA needs to be used it can be activated immediately, without any delay.
You can change your mind and cancel the LPA without any problem.5
If you change your mind and cancel the LPA and make another power, then further fees will need to be paid to the OPG.
No need to keep the OPG informed of any change of address/names.
There is a need to keep the OPG informed of any change of address/names.
A property LPA cannot be used as an ordinary power of attorney until you chose to register it or until it needs to be registered for use.
The attorney can use the property affairs LPA as an ordinary power of attorney as soon as it has been registered.