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Property and Financial Affairs LPA – You choose people you trust to make decisions on your behalf about
money and financial matters, including:
opening, closing and using your bank or building society accounts
claiming, receiving and using your
benefits, pensions and allowances
paying household and other bills
buying and selling your house and other property
NOTE – You can also make a separate LPA for your business affairs if you want different people to make
Health and Welfare LPA – You choose people you trust to make decisions on your behalf about things such
giving or refusing consent to particular types of health care, including medical treatment
you staying in your own home and getting help and support from social services
whether you move into residential care and finding a good care home
day-to-day matters such as your diet, dress or daily routine
The donor is the person who makes a lasting power of attorney (LPA). LPAs can be used to make decisions on the donor’s behalf if they lose mental capacity or find decisions difficult for another reason.
‘Mental capacity’ means the ability to make a decision. A person with mental capacity has at least a general understanding of the decision they need to make, why they need to make it and what is likely to happen when they’ve made it. People can sometimes make certain decisions but don’t have the mental capacity to make others.
You can make an LPA if you are at least 18 years old and you have the mental capacity to do so. Furthermore, if an attorney becomes bankrupt or subject to a debt relief order, they can no longer be an attorney under a property and financial affairs LPA
LPAs cover people who live or have assets in England and Wales. An LPA may not work in other countries, including Scotland and Northern Ireland. Additional advice may be required to create an LPA if the Donor lives, owns property or intends to move outside England and Wales Should my LPA become effective immediately once registered?
A health and welfare LPA takes effect only after it’s registered and if you don’t have the mental capacity to make decisions. Your attorneys cannot make decisions for you when you can make them yourself.
Most people choose for their LPA to take effect when registered as the most practical option. While you still have mental capacity, your attorneys can only act with your consent. You will still be in control of all decisions affecting you. If you later lose capacity, your attorneys can continue to act on your behalf for all decisions this LPA covers. This option is useful if you are able to make your own decisions but there’s another reason you want your attorneys to help you – for example, if you’re away on holiday, or if you have a physical condition that makes it difficult to visit the bank, talk on the phone or sign documents. Should you only allow your attorneys to act if you don’t have mental capacity can make your LPA a lot less useful. Your attorneys might be asked to prove you do not have mental capacity each time they try to use this LPA.
You can state in your health and welfare LPA what you’d want to happen if you needed life-sustaining treatment and you no longer had mental capacity. Life sustaining treatment can include a serious operation, such as heart bypass surgery, chemotherapy, radiotherapy or another cancer treatment, an organ transplant or even artificial nutrition or hydration (food or water given other than by mouth). Whether some treatments are life sustaining depends on the situation. For example, if someone had pneumonia, a simple course of antibiotics could be life-sustaining. Decisions about life sustaining treatment can be needed in unexpected circumstances. One example is a routine operation where things don’t go as planned.
Your attorneys are people who you appoint to act on your behalf. Many people choose family members, friends and other people they trust, no legal background is required, the important thing is that you know each other well and they respect your views and will act in your best interests.
You can ask anyone with mental capacity aged 18 or over to be your attorney but sure that each person agrees to be your attorney before you name them in your LPA. You must have at least one attorney. There’s no upper limit but too many attorneys could make things difficult, as they’ll need to work together. You should think about replacement attorneys – people who step in if one of your original attorneys can no longer act.
If you have more than one attorney, you must decide whether you want them to make some or all decisions on their own or whether they should agree some or all decisions unanimously. Most people choose this option because attorneys can make simple or urgent decisions quickly and easily and if an attorney can no longer act, the LPA won’t be cancelled. It is possible for one attorney to make decisions for you without asking your other attorneys.
If you appoint your attorneys to act jointly only, they must agree unanimously regardless how large and small the decision is, and they must all sign any relevant documents.
This option can be problematic if your attorneys can’t all agree on a decision as if your attorneys can’t work together, your LPA won’t work. Furthermore, if one attorney can no longer act or dies, your LPA will stop working, unless you’ve appointed replacements as law treats attorneys who act jointly as a single unit.
Whichever way you appoint your attorneys to act, they must always act in your best interests and make every effort to find out whether you can make a decision before they do.
A replacement attorney will step in if one of your attorneys were to die, lose mental capacity, becomes bankrupt, as a result of divorce or if a primary attorney decides they can no longer act on your behalf.
If you have only one attorney and that attorney can no longer act for you, your LPA will no longer work and if you have attorneys who must make all or some decisions jointly and 1 attorney can no longer act, the rest will not be able to make those joint decisions.
The result would be that someone you know will have to apply to the Court of Protection to get the power to act on your behalf, this can be both expensive and take a long time.
You need a certificate provider to make your LPA valid. A certificate provider is an impartial person who confirms that you understand what you’re doing and that nobody is forcing you to make an LPA.
Wherever possible, James McKenzie ensure that our qualified consultants acts as certificate provider to ensure you understand the significance of the LPA, that you have not been put under pressure to make it, that there has been no fraud involved in making the LPA and to be sure there is no other reason for concern.
James McKenzie recommend that you choose ‘people to notify’ who will be told when you or your attorneys apply to register your LPA. Letting people know about your LPA when it’s about to be registered provides extra security. It gives people who know you well a chance to raise concerns. This safeguard is especially important if there’s a long time between making your LPA and registering it.
You can choose up to 5 people to notify but they can’t be your attorneys or replacement attorneys. Many donors choose family members or close friends. Talk to the people before you name them and explain that they don’t have to do anything right away, they will be notified only when you or your attorneys apply to register your LPA and they do not have to do anything when they are contacted, unless they have concerns.
Anyone aged 18 or over, apart from the donor, can be a witness in an LPA. The certificate provider and any ‘people to notify’ can be a witness, where possible the James McKenzie consultant shall act as witness to the Donor and any present Attorneys signing the LPA. Attorneys or replacement attorneys can witness each other’s signature but not the donor’s.
You don’t have to register your LPA once you’ve completed it – you can register it later – but it’s a good idea to register it as soon as you can. Your attorneys can only use your LPA to make decisions on your behalf after OPG has registered it and sent it back to you officially stamped, this process can take up to 8-10 weeks.
If you register your LPA as soon as it is signed, the OPG can address concerns or errors while they can still be changed. You can only do that if you still have mental capacity. If you no longer have mental capacity it won’t be possible to correct any errors and the LPA can’t be used.
It costs £82 to apply to register each LPA. If you (the donor) have a low income before tax of less than £12,000 you will only have to pay £41 to register each LPA and if you receive particular means-tested benefits, you won’t have to pay anything.