Lasting Power of Attorney – Q & A
A Lasting Power of Attorney (LPA) is a legal document that enables you to nominate people that you trust, known as your Attorney or Attorneys, to make decisions on your behalf should you lose your own capacity to do so through illness, an accident or old. There are two types of Lasting Power of Attorney - Property and Affairs and Health and Welfare. The Lasting Power of Attorney for Property and Affairs will allow your Attorney(s) to handle your financial affairs - your money and finances, whilst the Lasting Power of Attorney for Health and Welfare enable your Attorney(s) to make decisions regarding your health and wellbeing should you ever be in a situation where you no longer have the capacity to take such decisions for yourself. In order to draft your Lasting Power of Attorneys for yourself, there are a few decisions that you would need to make before you start. The most common questions people ask us most are answered below. Do feel free to download our FREE and helpful guides for both Health and Welfare and Property and Financial Affairs before you begin.
Answer:
If you lose mental capacity, or become unable to manage your day-to-day affairs, and you have no LPA in place, nobody – not even your spouse or children – has an automatic right to run your finances or make decisions about your care on your behalf.
Instead, someone would have to apply to the Court of Protection to be appointed as your Deputy. That usually means a capacity assessment from a doctor, court and professional fees, and annual supervision fees for as long as the deputyship lasts. Making an LPA while you are able to is far quicker and cheaper, and it keeps the choice of who acts for you in your own hands.
Answer:
Yes – there are two, and you can make either one or both:
- Property & Affairs
- Health & Welfare
Property & Affairs LPA
- Covers your money and property. Your Attorney can pay your bills, manage your bank accounts, deal with pensions and benefits, buy things you need and, if it ever became necessary, sell your home. You can set out in the document exactly what your Attorney may and may not do.
Health & Welfare LPA
- Covers decisions about your care and medical treatment. You can decide in advance whether your Attorneys may give or refuse consent to life-sustaining treatment – such as surgery, medication, organ transplants, cancer treatment or artificial nutrition and hydration – including situations where a routine operation doesn’t go to plan.
Answer:
Anyone aged 18 or over whom you trust. Your Attorney will have the legal power to make decisions for you and must always act in your best interests.
Most people choose:
- Their spouse or partner
- Their children or other close family
- Trusted friends or neighbours
Answer:
- On their own (solely) – where you appoint just one Attorney.
- Jointly and severally – your Attorneys can act together or independently. This is the most popular choice: if one Attorney dies, the other can carry on alone or alongside your Replacement Attorney.
- Jointly – your Attorneys must agree on every single decision. If one of them dies and you haven’t named a Replacement Attorney, the others can’t act on their own and your LPA comes to an end.
Answer:
Your Certificate Provider signs to confirm that you understand what you’re signing, that nobody has pressured you into making the LPA, and that you have the mental capacity to make it. They must be someone who has known you for at least two years, or a professional such as your GP – although a GP will usually charge for this.
Popular choices include:
- A close friend
- A neighbour
- A work colleague
Your Certificate Provider can’t be:
- A relative
- One of your Attorneys or Replacement Attorneys
- A business partner or employee of you or your Attorney
- An owner, manager or employee of a care home where you live
Answer:
With a Property & Affairs LPA, you choose whether it can be used:
- As soon as it has been registered, or
- Only once you have lost mental capacity
Most people choose “as soon as registered”. It’s the more practical option, because while you still have capacity your Attorneys can only act with your agreement. With the “loss of capacity” option, your Attorneys may be asked to prove you lack capacity every time they use the LPA.
A Health & Welfare LPA can only ever be used once it is registered and you are unable to make the decision yourself.
Answer:
No – it’s entirely up to you. You can choose to let certain people, such as family members or close friends, know that you’re applying to register your LPA. That gives them the chance to raise concerns with the Office of the Public Guardian (OPG) if they think you’re being pressured.
If you’d rather not tell anyone, that’s absolutely fine.
Answer:
The Office of the Public Guardian currently charges £92 to register each LPA – so £184 if you make both types. Fees can change, so it’s worth checking the current figure before you apply.
Answer:
Your witness must be independent – not one of your Attorneys or Replacement Attorneys, and not a relative of anyone named in your LPA.
Your Certificate Provider is the exception: they’re allowed to witness your signature, and as they need to be there to sign the certificate anyway, they’re often the simplest choice.
Answer:
You won’t pay anything if you (the person making the LPA) receive one of these means-tested benefits:
- Income Support
- Income-based Employment and Support Allowance
- Income-based Jobseeker’s Allowance
- Guarantee Credit element of Pension Credit
- Housing Benefit
- Council Tax Reduction or Support (not the 25% single person discount or the Class U exemption)
- Local Housing Allowance
- Working Tax Credit together with at least one of: Child Tax Credit, the Disability Element of Working Tax Credit, or the Severe Disability Element of Working Tax Credit
If your gross income is under £12,000 a year, you’ll pay half the fee – known as a 50% remission.
