Lasting Power of Attorney

While owning assets in joint names can make it simpler, it does not invalidate the need for a Property and Financial Affairs Lasting Power of Attorney. For example, you could have a joint bank account with your spouse or registered civil partner. When one of the joint account holders pass away, the account is automatically transferred into the sole name of the surviving joint account holder. The sole account holder then becomes unable to manage their affairs. The attorneys under a property and financial affairs lasting power of attorney can then step in.

Yes you do.  If you are married or in a registered civil partnership, many assume that your spouse or registered civil partner will automatically have the right and be able to deal with your affairs on your behalf, but this is not the case.

Yes you can.  If you have an Enduring Power of Attorney and still have mental capacity, you can revoke the Enduring Power of Attorney Power and replace it with a Property and Financial Affairs Lasting Power of Attorney. A Deed of Revocation would be prepared revoking the Enduring Power of Attorney.

Both types of Lasting Powers of Attorney must be registered with the Office of the Public Guardian before the attorneys can use them.

Anyone aged 18 or over with the capacity to do so can make an LPA appointing one or more attorneys to make decisions on their behalf.

There are separate forms for making a property and affairs LPA and a personal welfare LPA. Copies of the blank forms and explanatory leaflets can be obtained from the OPG. Before the LPA is valid, you must have a certificate of capacity drawn up by an independent third party called a Certificate Provider. The Certificate Provider could be your solicitor, your doctor or another independent person that you have known personally for at least two years. A family member, attorney or relative of your attorney cannot be a Certificate Provider. The prescribed form must be completed and signed in the presence of a witness and each attorney must sign to confirm they have read the explanatory information and understand the duties imposed upon them.

In addition, you should list one or more named persons who you wish to be notified of any application to register the LPA. If none are listed then an additional certificate of capacity must be provided.

The form must be registered at the OPG before it can be used. There is a fee for registering each LPA, so if you are registering a property and affairs LPA and a personal welfare LPA, there will be two fees. You may be exempt from having to pay the fee if you cannot afford it. The Office of the Public Guardian can advise you.

You do not have to seek legal advice but an LPA is a powerful and important legal document and you may wish to seek advice from a professional organisation with experience of preparing them.

You can choose anyone you trust to act as your attorney provided they are over 18 and not bankrupt when they sign the form. You can appoint more than one person to act. You can also appoint replacement attorneys. If you appoint more than one person, you can choose whether they can act together or together and independently. You can state that your attorneys must act together for some decisions but for others they can act independently. Your attorneys must follow the principles set out in the Mental Capacity Act when they are making decisions or acting on your behalf. They must always act in your best interest and consider your needs and wishes as far as possible. When possible, attorneys should take all practical and appropriate steps to help the donor make the particular decision. An attorney must consider the donor’s past and present wishes.The attorneys must not take advantage of the donor’s position to gain any benefit for themselves. They must keep any entrusted money and property separate from their own and from that of other people and they must keep accounts of any dealings on the donor’s behalf.

Attorneys must keep affairs relating to the LPA private unless otherwise stipulated on the LPA form or if it can be demonstrated that it is in the donor’s best interest to pass on information to somebody else. A person can refuse to act as attorney but if they agree to take on the responsibility, they immediately become subject to the duties of an attorney. Failure to comply could mean the LPA is cancelled and in some cases the attorney may be taken to court on charges of fraud or negligence. The role carries with it power and responsibility and should not be entered into lightly.

The Office of the Public Guardian (OPG) is headed by the Public Guardian who is responsible for the registration of LPAs, including dealing with objections and maintaining the register of LPAs.
In addition, the OPG will deal with any issues (including complaints) about the way in which an attorney is exercising their powers.

The Court of Protection has wide powers, the same as the High Court with jurisdiction in England and Wales. It can:

• Decide whether a person has capacity to make particular decisions for themselves
• Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• Decide whether an LPA or EPA is valid
• Remove attorneys who fail to carry out their duties
• Hear cases concerning objections to register LPA.

Before October 2007, people could grant an FPA so a trusted person could act for them if they could no longer manage their finances. Any EPA remains valid whether or not it has been registered at the Court of Protection, provided that both the donor of the Power and the attorney/s signed the document prior to 1 October 2007.

An EPA can be used while you still have mental capacity, provided you consent to its use. If you start to lose the mental capacity to manage your finances, your attorney/s are under a duty to register your EPA with the Office of the Public Guardian (OPG). While the registration is being processed, your attorney/s can use your finances for essentials on your behalf such as paying for food or payment of regular bills. However, they will not be able to deal with larger transactions such as the sale of your house until the EPA has been registered.