Lasting Powers of Attorney (LPA) and Enduring Powers of Attorney (EPA):
A Power of Attorney is drafted in a legal document by a ‘donor’ (the individual appointing an attorney). A person appointed as an attorney, by you (the donor), will make decisions on your behalf. For the more technical reader, these documents find their legal framework in the Powers of Attorney Act 1971 and section 25 of the Trustee Act 1925.
Lasting Powers of Attorney were introduced by the Medical Capacity Act in 2005 and replace the old Enduring Powers of Attorney (EPA’s) from 1 October 2017. Whilst EPAs continue to be valid and will be seen in everyday life, it has not been possible to make an Enduring Power of Attorney since 1 October 2007.
The greater scope of the Lasting Powers of Attorney means the process of creating one and registering it at the Office of the Public Guardian, is considerably more involved than previous EPAs – hence the need for a solicitor. Several amendments have been made to the Lasting Power of Attorney forms since their introduction in 2007. The aim was to make them quicker and easier to complete. The latest piece of legislation was the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) regulations 2015, which came into force on 1 July 2015.
What types of Lasting Powers of Attorney (LPA) are there and which do I need?
There are two types of Lasting Power of Attorney; one which deals with your property and financial affairs and the other that deals with your health and welfare. The two are independent and you (the donor) may appoint different people to act in each of your LPAs.
The one that you require will be specific to your needs. If you wish to have someone deal with your property and financial affairs then you will use the first one however, if it is your health and welfare that you are concerned with then the second. In some cases, it will be both scenarios and therefore it is recommended that you make each.
Is your Lasting Powers of Attorney valid?
The LPA must satisfy the following criteria:
- It must be in the required form and comply with the specific requirements
- The person you are giving powers to (the done) must be validly appointed
- The document must be validly executed (signed) by all parties (you, your witness, certificate provider and attorney)
- The document must be registered in accordance with the law
- At the time of signing, the you must be 18 years old (or older) and must have capacity to sign the document
*If the document fails to satisfy any of the above, it will not give any authority and be invalid.
What powers dose my attorney have and what will their duties be?
The latest LPA forms contain a provision to notify others that you are making an LPA. This has been introduced as a safeguarding measure and to avoid people being forced into making a Lasting Power of Attorney that gives someone else the ability to manage your affairs. It is advisable to notify all of your relatives when you are giving someone power over your affairs.
When making an LPA, you may choose to state the name of the person that you wish to be notified in the event that an application for the registration of the LPA is made. This is optional however, and you may decide not to name anyone to be notified. The purpose of the notification is to reduce the risk of the power being used in inappropriately or unlawfully. Where there are no concerns about your mental capacity and the application to register is submitted immediately after the document is signed, then the donor might not want anyone to be notified.
The attorney does not have any power to act until the LPA is registered with the Office of the Public Guardian. In addition, in the case of a health and welfare, the attorney cannot act until the donor has lost mental capacity to make the particular decision themselves. This restriction can apply to property and financial affairs if specified in the Lasting Power of Attorney.
A solicitor or doctor will provide a certificate and they must sign the LPA form to confirm that they have discussed the LPA with you and that, in their opinion, at the date of signing you:
- Understand the purpose of the power of the authority you give to your attorney;
- Are not subject to fraud or undue pressure to create the power;
- Confirm there is nothing else that would prevent the LPA from being created by the completion of the paperwork.
How can you make a Lasting Power of Attorney properly?
The only real way to be sure, is to instruct a firm of solicitors. We often take this sort of work, on behalf of our private clients, and the fees range depending on your individual requirements. To register the LPA at the Office of the Public Guardian costs £82 (correct at 7 April 2019) and the professional fee is usually £400 plus VAT. If you are making two LPAs, then you have to pay the £82 for each document that you wish to register, and the firm’s professional fees, which total £750 plus VAT. Sometimes there are other requirements by our clients, and we can quote specifically on an individual basis depending on those needs.
If you need advice, then call (01273) 726951 today the contact us section of the website.