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Making an LPA – the Basics
As your Will only takes effect once you have died, it is important to consider the practicality of how your finances would be managed if you were to lose capacity. This need not simply be a dementia issue, but can be a prolonged illness, a stroke, etc. In purely practical terms, if you were placed in care and needed someone to make sure that your bills were paid and your home sold for this purpose, who would be able to deal with these matters on your behalf?
Where spouses or civil partners own all their property and hold all their accounts jointly, such an arrangement is useful and forward-thinking, but not essential until the first of the pair has lost capacity or died. However, those in sole control of the access to funds needed for their daily care should consider the creation of LPA’s as a matter of urgency.
The Lasting Power of Attorney (LPA) replaced the previous, simpler form of Enduring Power of Attorney (EPA) in October 2007. Further changes were made to the form in 2015 when the registration documents were incorporated into the body of the main form, and some changes were made to the questions and choices to improve the system for users.
There are two different types of LPA’s – Property and Financial Affairs, and Health and Care. They do very different jobs, and the first is clearly the most practically useful of the two. The second allows you to place the only form of legally recognised authority in your Attorneys, allowing them a greater authority with NHS/DWP/Care homes etc in relation to your care and medical treatment, and also allows you to leave instructions in relation to your end of life choices and authorities.
Although complex, the creation of an LPA is essential for anyone who wishes to exert any level of control over the management of their affairs and/or their medical care in the event of incapacity. Such incapacity need not merely be the result of a degenerative disease of the mind, but could also be the result of a tragic accident or progressive medical condition, and consequently decisions need to be taken while you are fit and well enough to certify to your own wishes.
Property and Affairs LPA
The Lasting Power of Attorney Financial Decisions is the most commonly requested form of the document. As with the old Enduring Power of Attorney (EPA), this allows you to choose your own Attorneys who will manage your affairs, and provide guidance as to your wishes and even limit their powers to certain areas or decisions.
The complications of the system are primarily found in the forms of certification or your own capacity and your informed choices on the LPA document itself, and are designed to protect the vulnerable and ensure that you have fully understood the consequences and extent of your election.
Lasting Power of Attorney Health and Care Decisions
Under an LPA dealing with personal health and care you can, if you wish, give your Attorney the right to make care decisions on your behalf, as well as granting them to the authority to make decisions as to what life sustaining medical treatment you should be given. Because of the serious and far reaching implications of this considerably more time would be spent on preparation and advice relating to such a document.
We have provided some detail on a few of the key points to consider when making an LPA below:
Section 1 – Donor
As you are creating your own Lasting Power of Attorney rather than having these choices made or confirmed for you by the Court of Protection, you are the ‘Donor’ of the powers that it grants. In order to have the legal authority to grant these powers you must be:
- Over 18 years of age; and
- Have full capacity to make these decisions.
We recommend that the Certificate provider used at Section 10 is a GP or other registered medical practitioner who, by issuing the certification, is also confirming your capacity to execute the form as Donor.
Section 2 – Choice of Attorneys
When appointing your Attorneys you will need to consider the following:
- Whether the person you wish to appoint is completely trustworthy.
- The risk that your Attorney(s) may abuse their powers under the LPA.
- That a sole Attorney may provide greater risk of abuse than two or more persons appointed together.
- Whether the Attorney(s) has the necessary skills to manage your financial affairs.
- Whether a family member or an independent person or a combination of both would be the best option for your Attorney(s).
Section 3 – How should your Attorneys make Decisions?
Appointing Attorneys together may provide a greater safe guard against abuse, although the drafting of the appointments must be exceptionally clear to ensure that no confusion arises as to the responsibilities of each individual Attorney, particularly in dealings with Banks and other third parties.
If you ultimately decide to appoint more than one Attorney, then you will need to decide they should be appointed to act:
- Jointly and severally, or
- Jointly, or
- jointly and severally in respect of some matters and jointly in respect of other issues.
Please bear in mind that, where a ‘joint’ appointment is made, Attorneys can only act unanimously, should one of your Attorneys die or become unable to act through incapacity or any other reason, then the remaining Attorney can no longer act, and the Lasting Power of Attorney is nullified.
The Law Society suggest that perhaps you could appoint a family member to act for day to day matters and a professional to act for complex matters, but you should bear in mind the additional remuneration that will be required for a professional to act and also the possibility of conflict between the two.
Please bear in mind that Attorneys must:
- Be over 18 years of age;
- Have full capacity to make decisions on your behalf; and
- Not be bankrupt or subject to a debt order of any sort.
Registration of the Lasting Power of Attorney
ALL forms of LPA need to be registered with the OPG Before they can be used by your Attorney(s), and this process takes a minimum of five to six weeks (longer if there are any objections). The original document needs to be submitted to the OPG.
There is no time limit for registration of the LPA once created.
The Court fees for registration are currently as follows:
|Lasting Power of Attorney (LPA) registration fee per LPA||£82|
|Enduring Power of Attorney (EPA) registration fee per EPA||£82|
|Repeat LPA application fee||£41|
Clearly there may be circumstances when your Attorneys need to use the LPA urgently and, whilst it may be tempting to avoid the extra costs and administration of registering the LPA immediately after it is signed, if that is not done there will be this delay of five to six weeks or more before your Attorneys can act. If they need to take urgent action they cannot do so until the registration process is complete.
If there is any problem with the LPA and you have lost capacity then the LPA cannot be corrected and may be invalid.
If however, you register the LPA immediately after it has been signed your Attorneys can, unless the LPA is expressed only to be effective on incapacity, act immediately.
Our expert team can provide guidance on registration of an existing EPA or LPA, or creation of a new LPA document. Please contact Lucy Thomas or Judith Bleetman on 020 8441 1556