Wills, Trusts and Probates

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which replaces the Enduring Power of Attorney (EPA). It allows you (the 'Donor') to nominate someone you trust (the 'Attorney') to make decisions on your behalf regarding your money, property and welfare. Anyone over the age of 18 can make an LPA, if they have the capacity. There are two types of LPA:

  1. Lasting Power of Attorney – Property and Affairs (LPA PA) - This allows you to nominate someone to make decisions on your behalf about your money and your property. Your Attorney can act for you while you still have the capacity to make your own decisions e.g. if you are out of the country for long periods of time or have physical difficulty when managing your affairs.
  2. Lasting Power of Attorney – Personal Welfare (LPA PW) - This allows you to nominate an Attorney to look after your physical wellbeing. Decisions under this form of LPA may be about whether to give or refuse consent to medical treatment or about where you live. Your LPA PW Attorney will only be able to make these decisions for you when you no longer have mental capacity, for example if you are unconscious or after the onset of conditions such as dementia. An LPA PW Attorney cannot refuse life-sustaining treatment unless you say so in your LPA.

When can it be used?

LPAs are available from 1st October 2007. Once you have created an LPA, it cannot be used, even in an emergency, until it has been registered with the Office of Public Guardian (OPG).

If you have a valid Enduring Power of Attorney, the introduction of the LPA will not invalidate it. You can choose to revoke your EPA and replace it with an LPA if you wish. Or you can keep your EPA and create an LPA PW as well to look after your physical wellbeing.

Does anyone else need to be involved?

As well as appointing Attorneys, you will need to choose who is to be notified when an application is made to register your LPA. This is one of the key safeguards. The people you nominate will be able to object to the registration. This can prevent an LPA being used where the Donor is pressured into signing it. You can nominate both family and friends.

Are there specific duties for an Attorney?

The Mental Capacity Act 2005 imposes some specific duties on an Attorney. When acting under an LPA an Attorney has a duty to make decisions in the Donors best interests and, if acting under a Property and Affairs LPA, to keep the Donor’s money and property separate from their own and to keep accurate records of their dealings as Attorney. If they do not perform their duties properly they may be ordered to compensate the Donor for any losses they have suffered. Anyone ill-treating or willfully neglecting someone they have care of who lacks capacity can be found guilty of a criminal offence.

Do disputes arise from arranging LPA's?

If someone at any time is unhappy with the appointment of the Attorney then they have the right to raise objections with the OPG.

What about gifts?

An Attorney can make usual gifts on your behalf i.e. birthday presents to relatives. However they cannot make tax planning decisions and if they wished to make a large gift which is not your usual pattern of expenditure then they would need to obtain permission from the Court of Protection.

When does my LPA have to be registered?

Before the LPA can be used it must first be registered with the OPG. The new law envisages the Donor registering their own LPA. If you have lost capacity and it has not already been registered, it will have to be registered at that stage.

If you have prepared both types of LPA then both will have to be registered. Those people that you have nominated will receive formal notification of registration. There will be a court fee payable. Registration is expected to take up to 6 weeks. Your Attorney cannot act for you, even in an emergency, if your LPA is not registered.

We therefore advise that you register your LPA as soon as possible. Registration of an LPA does not have to wait until you become incapable.

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Henry Anstey