Lasting Powers of Attorney: How to Plan Ahead?

A Lasting Power of Attorney (LPA) enables people to protect their interests when they no longer have the capacity to do so. It allows them to delegate decision making power over their health and affairs to someone they trust.

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a legal document that allows a person (the ‘donor’) to appoint one or more people (the ‘attorneys’) to assist the donor with decisions or make decisions on their behalf.

Lasting Power of Attorney has been designed to give a person more power over what happens to them and their assets. This is usually needed after an accident or an illness that compromises their ability to make decisions (they ‘lack of mental capacity’).

Who needs a Power of Attorney?

By creating a Power of Attorney a person gives a third party authority to either look after their financial affairs or after their health and welfare.

A common misconception is that only “old people” need this. Young people can equally benefit from taking this precautionary step. This would cover any sudden incapacity by giving their family the legal authority to manage their health, welfare and financial affairs. Family members that don’t have a Power of Attorney can experience great financial difficulties, stress and worry while seeking the legal right to ensure that their loved one is receiving the best treatment and their finances are looked after.

Who can be appointed Lasting Power of Attorney (LPA)?

Another advantage of taking out a Lasting Power of Attorney (“LPA”) – at any age – is that the person creating the LPA can decide who they wish to be their Attorney.  This can be anyone they trust. It may be their spouse, children, sibling or even a professional if there is a close relationship, for example their financial adviser.

Types of LPA

There are two types of Lasting Power of Attorney, Property & Financial Affairs and Health & Welfare.  The two are entirely separate; therefore if an LPA – Property & Financial Affairs is created it does not authorise the Attorney to deal with Health & Welfare matters and vice versa.  The most common LPA created is Property & Financial Affairs.  It is not necessary to create both types of LPA at the same time. A Health & Welfare LPA could come later depending on the individual circumstances and health of the client. 

More than one Attorney can be appointed and we always advise a replacement Attorney be appointed where there is a sole Attorney.  There may of course be a sole Attorney in the first instance and then two replacements should anything happen to the original Attorney.

What are the obligations of an Attorney?

The Lasting Power of Attorney document allows for any instructions or preferences to be made known to the Attorney.  If this is the case then the Attorney must follow the instructions and must in any event act in the best interest of the Donor at all times and should not allow their own personal circumstances to conflict with those of the Donor.

What is the process of making an LPA?

All Lasting Powers of Attorney must be registered with the Office of the Public Guardian (“OPG”).  This is a Government Body which keeps a record of all LPAs and can assist an Attorney if they have any concerns and of course can investigate any abuse of a vulnerable person. 

When an application is made to the OPG for registration of the LPA the law requires that at least four weeks elapse before the actual registration can take place.  This gives people and usually close relatives time to raise any concerns that they may have either as to the choice of Attorney or the capacity of the Donor.  It is in fact unusual for such objections to be made and in almost all cases the application proceeds without any difficulty. 

To create a Lasting Power of Attorney the Donor must have capacity to provide instructions to the solicitor. They need to also be able to understand that the document they are creating will allow the appointed Attorney to look after their financial affairs or health and welfare either immediately or after they have lost capacity.  It is the solicitor who will act as the Certificate Provider and therefore they must be satisfied that the client does have capacity. If there is any doubt then we recommend a short report be obtained from a GP or similar. This avoids any suggestion that the person creating the LPA does not have capacity.  Again this is unusual. 

It is likely that the process, including the four week waiting period for any objection would be 6 – 8 weeks from first instruction to conclusion (depending of course how quickly the client returns with approval of the documents and an appointment for signing of the same).  Two appointments are usually required for this. In this situation there is usually no restriction on client and Attorney attending the appointment together.

When does an LPA start?

Some people believe that once a Lasting Power of Attorney has been created it allows the Attorney to manage that person’s affairs immediately.  Again this is a common misconception.  The Donor can decide whether to give the Attorney authority to manage their affairs immediately after the LPA has been registered or only when they lose capacity. 

How much does a Lasting Power of Attorney cost?

The charges for Lasting Powers of Attorney are £400 plus VAT  if a single LPA is taken out or if both LPAs are taken out by a single person then the charge would be £750 plus VAT or in the instance of a couple where they both take out say Property & Financial Affairs the costs would be £750 plus VAT.  There is a compulsory registration fee of £82 to be paid to the OPG per application to register. 

At the end of the process a certified copy of the LPA is provided to the client with the original stored in our archives should this be the client’s instruction. The client can of course retain the original LPA if they wish.  We generally ask the client to pay the fee for registration directly to the OPG followed with our own invoice at completion of the process.

How can Hopkins Solicitors help?

We offer confidential LPA consultations in all of our offices, located in Nottingham, Mansfield, Kirkby in Ashfield and Sutton in Ashfield. Our specialised solicitors also offer home, care home and hospital visits for a confidential discussion.