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Lasting Power of Attorney

Section 12 Mental Capacity Act 2005 allows Attorneys to make gifts on ‘customary occasions’ as long as the gift is reasonable in size, considering the size and nature of your estate. An Attorney cannot make large gifts from your assets which would fall outside the scope of section 12. In addition, it is possible to restrict your Attorney’s authority further within the LPA, if you wish to do so. If an Attorney wishes to make a gift which falls outside of section 12, they must first apply to the Court of Protection for approval. The court would only grant the application if the gift is considered to be in your best interests.

In addition;

  • An Attorney cannot make or change your Will for you.
  • An Attorney cannot ‘delegate’ their responsibilities to somebody else.
  • Attorneys can claim their out-of-pocket expenses from your estate. However, they cannot decide to pay themselves for the time spent in dealing with your affairs, unless they are a professional Attorney and you have granted authority within the LPA document for them to charge for their time.
  • If you have set out restrictions on your Attorney’s powers or authority within the LPA, then your Attorney cannot act outside the scope of their authority without an application to the Court of Protection. An example within the LPA for health and welfare is to restrict the Attorney’s authority so they cannot make ‘life sustaining treatment’ decisions for you. In that situation, the decision would be made by medical professionals on the basis of medical opinion as to your best interests.

Your LPA has to go through a number of stages in order to be valid:

  1. If you have sought our advice, we would first take your instructions and provide you with full individualised advice. We would then draft your LPA(s) for you to review, before inviting you back in to our office to sign the LPA(s). This part of the process usually takes 2-4 weeks.
  2. Your LPA has to be signed by you, in the presence of a witness.
  3. Your ‘certificate provider’ must sign their section to confirm you are making the LPA free from pressure and that you have capacity to make financial and/or health decisions. Where we have advised on your LPAs and drafted the documents, we can usually act as your certificate provider.
  4. Your Attorneys then each need to sign their declaration sections, in the presence of a witness. This part of the process can take 2-6 weeks, depending on the number of Attorneys, and whether they can sign their declarations together of whether the LPAs need to be sent to them.
  5. Your LPA then needs to be registered with the Office of the Public Guardian (OPG) before it can be used by your Attorneys. The registration process involves a statutory notice period of 4 weeks from the date that the OPG receive your LPA. Generally, LPA registration is currently taking approximately 12 weeks.

  • Anybody under the age of 18
  • Anybody who lacks the mental capacity to make decisions for themselves
  • Anybody who is subject to a Debt Relief Order or is an undischarged bankrupt cannot act under an LPA for Property and Financial Affairs. This restriction does not apply to the LPA for Health and Welfare.

In addition, there are practical considerations to take into account when choosing a suitable Attorney:

  • Conflicts of interest (an Attorney must act in your best interests)
  • Geographical location
  • Reliability and trustworthiness
  • The Attorney’s availability
  • Convicted offenders (although they are not prohibited, appointing someone who has been convicted of fraud or financial crimes should be avoided).

An LPA is a powerful document that, in the wrong hands, can be abused. Our advice includes discussing your wishes to ensure that the person(s) you are appointing are the best people to take on that responsibility.

In addition, many cases of Attorneys abusing their powers have occurred as a result of the Attorney unknowingly exceeding their authority (such as gifting away large amounts of your assets where Court approval should first have been sought). As part of our legal advice we work with you to ensure your LPA has appropriate safeguards or restrictions in place, to make such abuse of position less likely.

You need to be able to trust that the person(s) you are appointing as your Attorney(s) will make decisions in your best interests. Your attorney(s) must also be able to work well together.

This can often mean appointing one of your adult children and not the other, if to appoint both would cause friction, prolonged decision-making, or create a risk to your finances.

Without and LPA for property and finances, nobody would be able to manage your bank accounts, property or other assets for you if you were to lose capacity to make financial decisions. In that situation, an application to the Court of Protection for a Deputyship Order would be required to grant access to your assets before any payments could be made for your care or your day-to-day living needs. This is an expensive application, and you would likely have no say in who makes the application.

An LPA for health and welfare allows you to decide who can make health and medical treatment decisions for you, including decisions relating to social care.

In both cases, making an LPA allows you to have the control over who is appointed to manage your finances and/or health decisions. You can also use the LPA to restrict your Attorney’s authority or to specify your preferences.

Your banks would need to take a copy of the LPA before they will allow your Attorney(s) to access and control your bank accounts. You do not need to register the LPA with your bank unless and until your Attorneys need to make decisions for you.

Where you assets (money, investments, shares, property, etc) are concerned, your next of kin does not have any power to manage these for you in the event that you lose capacity to make decisions or you have difficulty doing things for yourself. Only an Attorney or court-appointed Deputy would be able to manage your financial affairs on your behalf.

In a medical setting, your next of kin only has the right to be informed about what is happening, and they may be involved in medical decisions. However, your next of kin does not have a right to step into your shoes and make decisions for you if you cannot do so for yourself.

Therefore an LPA does not ‘override’ the next of kin because it grants your Attorney powers that your next of kin does not have.

An LPA grants the Attorney(s) the power to make decisions for you. The LPA for property and financial affairs allows your Attorney to access all of your UK assets in order to manage these on your behalf. Depending on how the LPA is drafted, the scope of the Attorney’s authority can be restricted.

In addition, depending on how the LPA for financial affairs is created, it can be used by the Attorney before you have lost capacity to make financial decisions (although they should only act with your consent.) as well as once you have lost mental capacity.

An LPA for health and welfare allows your Attorney to step into your shoes to make decisions for you about your medical treatment, where you should live (including whether you should move into residential care), and they can restrict who has contact with you.

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