What Is A Lasting Power Of Attorney?

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The role of a Lasting Power of Attorney and why it’s such an important document for you to have are two crucial factors to help and provide complete peace of mind for you and your family. If accident or illness prevents you from making important decisions – where you lack the mental or physical capacity to do so yourself – you can choose someone to become your attorney and they can make decisions for you. But what’s really involved?

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a common form of Power of Attorney. Widely used, it’s a very specific, legally-binding document that allows you (as the ‘donor’) to choose one or more people (known as ‘attorneys’) to act on your behalf on decisions over affairs.

While you have complete control over who you choose as your attorney(s), they can only take control of your affairs and make decisions for you when you can no longer make them for yourself. This is known as lacking the ‘mental capacity’ to make decisions, so an LPA is something well worth setting up while you’re in good health.

In older age, you might need more time to understand an issue or to tell others how you feel. This doesn’t mean you lack ‘mental capacity’. Every situation is different and every opportunity should be given for you to make decisions in your own time and on your own terms.

Types of Power of Attorney

There are different types of legal Power of Attorney documents and which one you choose will be dependent on your circumstances. The only requirement is your chosen attorney(s) must be aged 18 or over and in good mental health when your choice is made.

Whichever you choose, this can be done as a standalone exercise or as part of reviewing or updating your Will, so contact the team at MJR Solicitors and we’ll be happy to help you. So with different Power of Attorney options available to you, what’s the difference between them?

Lasting Power of Attorney (LPA)

A Lasting Power of Attorney allows your chosen attorney(s) to act on your behalf. It has no expiry date and, once signed and registered, can be used immediately at your request or whenever you lack the mental capacity to make your own decisions.

There are two choices of LPA: a Property and Financial Affairs LPA or a Health and Welfare LPA. You’re free to choose either to suit your needs, but you can also choose to have both, giving you more control over your affairs right from the start.

Property and Financials LPA

This LPA allows decisions to be made on your money and property. As soon as your attorney(s) is chosen, they can act on your behalf immediately if you wish, but only with your permission. The areas a Property and Financial Affairs LPA cover can include:

  • Day to day management of your bank or building society account
  • Paying household or utility bills
  • Collecting any benefits or pension
  • Selling your home or other property

Health and Welfare LPA

A Health and Welfare LPA is for decisions to be made on your health and care, but only when you’ve lost the mental capacity to make those decisions for yourself. This LPA covers sensitive or personal issues, including:

  • Your daily routine (i.e. washing, dressing, and diet)
  • Any prescribed medication
  • Your home and where you live
  • Moving into a residential or care home
  • Any life-supporting treatment

Ordinary Power of Attorney (OPA) or General Power of Attorney

An Ordinary Power of Attorney gives a chosen attorney full permission to act on your behalf, temporarily, for any set period, usually for up to 1 year. This is an ideal option if you want to give power to someone to make decisions for you in certain situations, including if:

  • You go abroad for extended business or holiday trips
  • You’re in hospital or recovering from serious injury

While you choose a set timescale for your OPA, you can also limit it to cover only specific activities. So you can put it in place if you know you’re going to be taking part in a dangerous or high-adrenalin sport for example.

But as soon as you lose your mental capacity, the OPA will expire so it can’t be used if you need someone to manage your affairs on your behalf in the long term.

Enduring Power of Attorney (EPA)

Enduring Power of Attorneys documents have now been phased out and replaced in 2007 by the standard Lasting Power of Attorney. However, if you have an EPA that was set up before October 2007, it’s still valid and can be used in the same way as a Property and Financial Affairs LPA. However, it will need to be registered if you are losing or have lost your capacity.

Just like a Property and Financial Affairs LPA, your older EPA only covers your property and/or finances and comes into effect should you lose your mental capacity and you want your chosen attorney to control your affairs on your behalf. It’s also worth checking any restrictions that may have been placed on it.

How to set up Lasting Power of Attorney

Setting up and registering your LPA is fairly straightforward in theory, but there can be a few challenges or complications along the way. While you’re free to do this yourself, it’s important to remember that your LPA is a legally binding document. In the meantime, here’s a rundown of what happens and how MJR Solicitors has the expertise to set up your LPA for you.

1. Choose your Attorney(s)

With the role of Attorney being so important, you might think whoever you choose needs to be a professional. This is fine if you have professionals like this to call upon, but most people prefer to choose close friends or family members to act for them. In fact, your attorney(s) can be anyone, as long as they’re over 18, including:

  • Any blood or non-blood relative
  • Any friends, family, or in-laws
  • A professional (i.e. a doctor, lawyer, or solicitor)
  • Your husband, wife, or partner

The only other necessary condition is that they have the mental capacity to make their own decisions. However, you’re not able to choose an attorney(s) for your property and financial affairs if they’re limited by bankruptcy or an Individual Voluntary Arrangement (IVA).

Once you’ve decided who your chosen attorney(s) will be (and you’ve asked their permission), we’ll need their personal details, as well as details on how you want them to act for you.

If you choose to have more than one attorney, you’ll need to decide whether you want them to act jointly or ‘jointly and severally’. Acting ‘jointly and severally’ means each attorney can use the LPA independently if necessary as well as with other attorneys. Acting ‘jointly’ means all attorneys have to agree on the decisions being made.

2. Choose your certificate provider

Each of your forms needs to be signed by a ‘certificate provider’. This is an impartial professional, usually your doctor, who can confirm you’re acting under your own free will. You, your attorney(s), and a witness will then need to sign the paperwork to complete the process.

3. Notifying others

There’s a process that asks whether you want to notify anyone else about your LPA  and attorney(s) for their information. You don’t have to do this unless you want to. If you do, it can be anyone who isn’t already your chosen attorney(s).

4. Submitting your forms

We’ll submit your paperwork to the Office of the Public Guardian (OPG) on your behalf along with your standard payment of £82 per LPA. Unfortunately, this can bring a lengthy wait, sometimes taking anywhere up to 20 weeks, so it’s always best to get the process started as early as possible.

5. Registering your Lasting Power of Attorney

When the OPG has accepted and registered your LPA, they’ll send an officially stamped copy back to us as proof of registration. At this point, you can purchase copies of the LPA to use as and when needed, leaving the original paperwork with us for safe storage.

It’s important to remember that when registering your LPA with the OPG, there can be a waiting time of up to 6 months for this to happen, so you should set up your LPA as early as you can. 

Power of Attorney in your country

All the processes we’ve talked about relate to England and Wales. But Scotland and Northern Ireland both have different processes and registration systems. Pricing also differs for each devolved UK nation. The cost per Power of Attorney is £82 in England and Wales, while £81 in Scotland and £151 in Northern Ireland.

While some of the names for each Power of Attorney document are slightly different, along with the costs, the process is largely the same for each. But whichever part of the UK you’re from, MJR Solicitors has the legal background and experience to complete your paperwork correctly for you.

General risks of naming your Lasting Power of Attorney

Having an LPA attorney(s) is essential to ensuring your affairs are dealt with properly when you can no longer make decisions for yourself. But there can be some risks attached to choosing them.

In naming your attorney(s), it gives them complete control over your affairs and the authority to manage them in your best interests. But there could be concerns they might act in the best interests of themselves rather than yours. So when choosing your LPAs, consider:

  • How they look after their own personal or business affairs
  • How well you really know them
  • Whether you trust them implicitly to make decisions in your best interests
  • How happy they’ll be to make those decisions for you

You can change or end your LPA at any time, even after registration, as long as you still have the mental capacity to do it. You can also make an official complaint about your LPA if you don’t think they’re acting in your best interests.

Contact MJR Solicitors today for LPA help and support

When you’re thinking about setting up your Lasting Power of Attorney, our experienced LPA team is available for specialist legal advice every step of the way. Whether you choose your LPA for property and finance or health and welfare or both, we have the experience to give you the dedicated help and support you need. And we’re available for you 24/7, so call us now on 01243 945 054 or email at info@mjrsolicitors.co.uk.

Get Your Lasting Power Of Attorney Consultation

Mark Riley

Mark Riley is a specialist lawyer offering services in Criminal Law and Professional Misconduct Cases. Mark has studied around the world, including time in Australia. Whilst there he met many amazing and inspirational lawyers. Mark is a passionate advocate and can be found in Courts up and down the Country having practised in Magistrates' Courts, Crown Courts and various Tribunals.
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