Power of Attorney (LPA): Everything You Need To Know
28 minute read
Date Published - October 15th 2024
28 minute read
Date Published - October 15th 2024
Planning for the future is essential, and a Lasting Power of Attorney (LPA) can provide the peace of mind that your affairs will be managed by someone you trust, should you ever lose the ability to make decisions for yourself. Whether it’s handling your finances, making healthcare decisions, or ensuring your wishes are respected, appointing an attorney under an LPA allows you to stay in control, even when life takes an unexpected turn.
At GloverPriest Solicitors, our expert Wills, Trusts, LPA and Probate solicitors are here to help guide you through the process of setting up an LPA, ensuring every detail is handled with care and expertise.
If you're considering putting plans in place or simply need more information, contact our experienced Lasting Power of Attorney lawyers today for professional, compassionate advice. Call us directly on 01217 945814 or complete our contact form to discuss your needs.
A Lasting Power of Attorney (LPA) is an important legal document that lets you choose someone you trust to make decisions for you, should you no longer be able to. It’s completely separate from your Will and is used while you're still alive. The person you choose, known as your 'attorney', can step in and make decisions about your finances, health, and welfare if you lose the ability to do so yourself.
An LPA gives your chosen attorney the authority to act on your behalf, even if you lose mental capacity. You can cancel it at any time while you’re still mentally capable, but once you lose that capacity, the LPA stays in effect until you pass away.
In certain situations, an LPA can end early, including:
There are two types of Lasting Power of Attorney:
A donor can choose one or both types of LPA.
A Health and Welfare LPA authorises your attorney to make medical and healthcare decisions on your behalf when you cannot do it. The attorney makes decisions on matters relating to:
Your attorney can also spend your money to improve or maintain your quality of life, such as:
You can get a Health and Welfare LPA temporarily, for example, if you are going under anaesthesia or for long-term health issues. It also includes instructions about consenting to and refusing treatment.
Your attorney must make these decisions in your best interests. The LPA becomes effective only when you cannot decide on your medical treatment and care.
A Property and Financial LPA authorises your attorney to make financial decisions on your behalf. The attorney can be a financial professional handling your affairs or a trusted family member or friend acting on your behalf when you lack the physical or mental capacity to do it yourself.
A Property and Financial LPA allows your attorney to make decisions on:
The LPA can take effect immediately or in the future. Your attorneys can act on your behalf while you still have mental capacity if the LPA says so or if you give permission.
Otherwise, the attorney must wait until you are not mentally capable of making decisions. At least one doctor must certify you to be physically or mentally incapable for incapacity to occur.
The important point to remember is that you can only appoint an attorney to look after your affairs whilst you understand the nature and effect of the document. So, if you should suffer an unexpected loss of mental capacity, with the LPA already in place, the attorney can step in immediately to take care of your finances and healthcare decisions.
Unfortunately, without the LPA in place, your next of kin can only get the legal authority to manage your affairs through a long and costly process of applying for a court order.
While a donor can choose to grant you one or both types of LPA powers, there are still limits to how much they can do.
For instance, an attorney cannot make decisions about a task not expressly described in the LPA. A donor can also prohibit an attorney from performing certain actions, such as accessing their safe deposit box, withdrawing from their bank account or viewing their will before they’ve passed.
An Ordinary Power of Attorney allows someone to handle your financial matters, but only while you still have mental capacity. It’s usually used for situations where you need help temporarily, such as being in the hospital or away on holiday.
Unlike a Lasting Power of Attorney, an Ordinary Power of Attorney automatically ends if you lose mental capacity.
Before the introduction of LPAs in 2007, Enduring Power of Attorney (EPA) was the standard Power of Attorney. LPAs replaced the Enduring Power of Attorney when the Mental Capacity Act of 2005 came into effect on 1st October 2007.
EPAs created before 1st October 2007 can still be used in England, but new EPAs cannot be created now. EPAs only cover property and financial affairs, not health and welfare. It remains valid even if the donor loses mental capacity. However, if the attorney appointed under an EPA wants to make decisions about the donor's health and welfare, they must apply to the Court of Protection for permission. An EPA ends if the donor cancels it or if they die.
A General Power of Attorney grants someone the authority to act on behalf of the donor but is typically limited to specific situations or time frames. The duration of a General Power of Attorney depends on the terms specified in the document. Once the set time ends, the General Power of Attorney is no longer valid.
It’s important when drafting the LPA to consider several different situations, including:
Mental Capacity is the ability to make sound and independent decisions for yourself. Someone who ‘lacks capacity’ might be due to illness, injury, mental health issues or learning disabilities.
So, a person has mental capacity if they can do the following:
Mental capacity is decision-specific, which means each decision must be taken into account as a matter in and of itself. For example, a person may have the mental capacity to make simpler decisions such as what to wear but may lack the capacity to make big decisions relating to finance or their health.
It’s the Mental Capacity Act 2005 that allows people to use Lasting Power of Attorney to appoint someone to make decisions on their behalf. To be able to choose an attorney, you must have mental capacity.
Testing mental capacity typically involves a two-step process. Firstly, it assesses if there's an impairment of the individual's mind or brain due to factors like illness or injury. Secondly, it evaluates whether this impairment leads to an inability to make decisions when necessary. This includes difficulties in understanding, retaining, or using information to make reasoned choices.
Even if someone struggles to make decisions independently, it's important to see if they can do so with support. If they can make informed choices with assistance, they are still considered to have mental capacity.
Signs of declining mental capacity include noticeable behavioural changes, difficulties in everyday decision-making, and concerns raised by healthcare professionals or caregivers.
A mental capacity assessment can provide clarity when doubts arise. While anyone in regular contact with the individual can assess capacity, in legal situations, an official test may be required, such as when selling property or making a Will. The assessment, conducted under the Mental Capacity Act 2005, aims to determine whether the individual lacks the capacity to make decisions by examining their ability to understand, retain, and use information to reach decisions.
How long a Power of Attorney lasts in England depends on which type of Power of Attorney is in place. Whether it is a Lasting Power of Attorney, an Enduring Power of Attorney, or a General Power of Attorney, there are different circumstances that can bring each one to an end.
You can choose anyone over the age of 18 with the mental capacity to act as your Lasting Power of Attorney (LPA). Providing they are not bankrupt, they can also make decisions about your finances and property.
It is important to choose someone who is able to understand your needs and wishes and responsibly act on your behalf. As such, it’s a good idea to choose a person who is good at weighing up different options and who will take the initiative to research and speak to different professionals to gather information to make informed decisions. Your LPA must understand their responsibilities and powers and be someone that you can trust.
Most people choose someone who they can trust and believe will act in their best interests such as a family member, a spouse, a civil partner, a friend or a professional like a solicitor.
A Lasting Power of Attorney is there to give someone the ability to manage your affairs and finances if you are no longer able to do so yourself. They can also make important life-changing decisions about a person’s lifestyle such as their life-sustaining treatment and medical care. Even the next of kin has no specific legal rights to make decisions about health and care unless they have a Lasting Power of Attorney.
You can have up to four attorneys but this could complicate matters if they are not able to work well together to make the right decisions. In this case, the Court of Protection may get involved and decide to cancel the Lasting Power of Attorney and order that an independent professional deputy be appointed.
Yes, a husband and wife can have power of attorney for each other. This appointed individual, known as the attorney, can be a husband, wife, partner, relative, friend, or even a professional like a solicitor. The key requirement is that the attorney must be 18 or older and have the mental capacity to make decisions.
Residence in the UK or British citizenship is not mandatory for an attorney. The selection process should involve assessing the potential attorney's ability to manage their own affairs, the level of trust you have in them, and their willingness to act in your best interests.
Responsibilities of an attorney include following the instructions and preferences outlined in the Lasting Power of Attorney (LPA), aiding the individual in making their own decisions to the extent possible, and always acting in the individual's best interests while respecting their human and civil rights.
Choosing a reliable and trustworthy attorney is crucial to ensure proper representation and decision-making on behalf of the individual. This is why many people choose their partner, as they know they can rely on them. However, some people may decide that they want someone else to be their attorney. It depends on your preferences and your personal circumstances.
When the donor passes away, the Power of Attorney essentially becomes invalid. This means it's important to make a Will to give instructions for after your death.
Although the Lasting Power of Attorney gives the attorney a significant amount of power, there are limitations. An LPA cannot override a Will and the attorney can only make decisions within the scope of the powers agreed upon in the LPA.
While an attorney has the power to control and dispose of the assets that appear in the Will before the donor's death (for example selling a property to pay for care), this does not mean an attorney can change the Will itself.
After someone has passed away, an LPA would no longer have any effect. This means that, if there was no valid Will, you’ll need to apply to be an ‘administrator’ or ‘executor’ (unless there was a clause in the LPA that says the power will automatically be given to you).
Even with this power, the estate may still have to go to probate.
A power of attorney gives another person the legal authority to make decisions about your money and property on your behalf, either for short-term situations or on a long-term basis.
You can choose anyone to be your attorney and you can even appoint more than one person. The only requirement is that they are 18 years or older and have the mental capacity to make their own decisions.
A beneficiary is a person named in your Will to whom you have chosen to inherit assets once you pass away. You can name anyone as a beneficiary, including someone with a power of attorney.
The short answer is ‘no’, a Will cannot be changed by someone with a Lasting Power of Attorney (LPA) whether that’s for Health and Welfare or Property and Financial affairs.
You can challenge a lasting power of attorney (LPA) in several ways depending on who you are and the reason behind your objection. If you are the donor and object to the registration of your attorney, you can fill out the LPA006 form.
You can also object based on a ‘factual objection’ or on ‘prescribed grounds’. When making these objections, you may need to provide evidence to support your claims.
Factual objections cover issues such as if the donor or an attorney has passed away or if they were both in a civil partnership but have now divorced or ended their civil partnership. You may also make a factual objection if you believe the attorney lacks the mental capacity to be one or if the attorney has chosen to stop acting in their role. Lastly, you may make a factual objection if either the donor or an attorney is bankrupt, interim bankrupt, or find themselves subject to a Debt Relief Order.
The following reasons cover why you might challenge the LPA on prescribed grounds. For example, you believe the attorney is not legally correct, or the donor lacked the mental capacity to choose their attorney, or they may have cancelled their attorney once they regained capacity, but it is still ongoing. Another reason could be that the attorney is acting against the donor’s best interests. It also covers areas where there was fraud, such as a fake signature, or if the donor was under pressure to make somebody their attorney.
The process of challenging an attorney involves completing an objection form and sending it to the Court of Protection.
To challenge an attorney on prescribed grounds, you have to fill out a notification form too. You do not have to pay any fees if you object and are an attorney or a relevant person who needs to be told.
However, if you are not an attorney or a person who needs to be told, you will have to complete an objection form (COP1) alongside paying the fee. If you are eligible for a reduction or exemption, you can apply to have the fee reduced.
After sending the forms, you will be contacted either by the Office of the Public Guardian or the Court of Protection, and they will inform you of what happens next.
Ultimately, only the Office of Public Guardian (OPG) or the Court of Protection can remove a power of attorney in the UK. A Lasting Power of Attorney (LPA) is a legal document, therefore it can only be revoked or overridden by the donor through the OPG if they have mental capacity or through the Court of Protection if it needs to intervene.
An LPA is a document confirming the appointment of attorneys to assist donors in making important decisions on their behalf relating to health and welfare, finances and property.
There are also other ways that an LPA can end, for instance, family members or other LPAs can contact the OPG if they do not agree with an LPA’s actions or decisions. But the final decision is down to the OPG.
The Office of Public Guardian’s primary role is to help people stay in control of their decisions in relation to health and finance. The Court of Protection was set up by the Mental Capacity Act 2005 and appoints people (deputies) to make decisions on behalf of others when they cannot do so themselves. The OPG and the Court of Protection are part of the same process although the OPG keeps track of and monitors all the attorneys, deputies, and guardians across the country, whereas the Court makes important decisions.
Just because someone has dementia, it doesn’t automatically mean they lack mental capacity. People with dementia may lose mental capacity over time and ultimately may not be able to make their own decisions.
If someone with dementia still has mental capacity, they will be able to appoint a power of attorney to make decisions for them. If they lack mental capacity, they will not be able to appoint a power of attorney and may need to have a deputy to make decisions on their behalf. To determine whether they have mental capacity or not, they will need to have an assessment.
Mental capacity is a multifaceted concept that is not solely determined by illness or injury. It is crucial to approach this assessment with respect for an individual's autonomy and dignity. Recognising signs of deteriorating mental capacity and conducting assessments when necessary ensures that individuals receive the support and protection they need while upholding their right to make decisions to the best of their abilities.
A deputy is an individual appointed by the Court of Protection to handle your property and financial affairs when you're unable to do so due to a lack of mental capacity. Deputies can range from relatives and friends to spouses, partners, or even professionals like solicitors or social workers. However, it's essential to note that the chosen deputy must be at least 18 years old.
Once the Court of Protection designates a deputy, they issue a specific order outlining the scope of their authority. While both deputyship and Power of Attorney grant individuals the authority to act on your behalf if you lose mental capacity, they are distinct in several ways.
Power of Attorney is a legal document that enables you to proactively appoint a person to make decisions on your behalf. It is typically established in advance, well before the loss of mental capacity occurs.
Deputyship, on the other hand, is a measure of last resort. It comes into play when someone loses the capacity to make decisions, and there is no existing legal authority to act on their behalf. In such cases, the court appoints a deputy they believe is suitable, but the deputy's powers are more limited compared to those of an attorney.
A power of attorney can sometimes give gifts, including to themselves, but there are strict rules and oversight to ensure these actions are always in the best interests of the person they represent.
If you're acting as a power of attorney and considering accepting a gift for yourself from the person’s estate, you need to tread very carefully. It's crucial not to misuse your position to benefit personally. The Court of Protection can scrutinise such actions, particularly assessing whether the person had the capacity to consent. If found inappropriate, the court may determine that you have overstepped your authority.
Rules on gift-giving
The general principle for deputies and attorneys regarding gifts is straightforward, apart from specific exceptions, the law prohibits making gifts from the person's estate. For attorneys operating under a registered property and financial affairs Lasting Power of Attorney (LPA), gifts are permissible only if they meet the following criteria:
For attorneys under an Enduring Power of Attorney (EPA), the exceptions are slightly more restrictive but follow a similar structure, allowing gifts that are seasonal or on anniversaries, given to someone connected to the person, and of reasonable value.
Attorneys must adhere to any specific restrictions outlined in the EPA or LPA regarding gifts. It's important to note that while the donor can impose restrictions, they cannot expand the powers granted by law. If an attorney wishes to make a gift that falls outside these legal boundaries, they must get approval from the Court of Protection.
Deputies, appointed by the court, have their gift-giving powers defined in their deputy order, which usually mirrors the statutory authority of attorneys. It's vital for deputies and attorneys alike to resist pressure to give gifts and to act within their legal authority.
The Mental Capacity Act 2005 does not define 'reasonable' or 'unreasonable' gifts, leaving it to the attorney or deputy to make this judgment. When determining reasonableness, think about the following:
Other factors to consider include the potential impact on inheritance and inheritance tax implications. Each situation is unique, so it's essential to evaluate all relevant circumstances before making a decision.
Yes, your parent can still change their Will even if you hold Power of Attorney, as long as they have the mental capacity to understand what they’re doing. This means they need to fully grasp what the changes mean, how they’ll affect their estate, and the impact on any beneficiaries.
It’s worth noting that having Power of Attorney doesn’t give you the right to change your parent’s Will. The decision has to come from them alone.
If your parent doesn’t have a Will and no longer has the mental capacity to make one, you might be able to apply to the Court of Protection for what’s called a Statutory Will. This is a legal document created by the court to reflect what your parent’s wishes likely would have been.
It’s really important to keep your Will up to date so it reflects your current wishes. A good idea is to review it every five years, or whenever there’s a major life event, such as getting married, divorced, or having children.
For minor updates, you can add something called a codicil - a legal add-on to your existing Will. However, if bigger changes are needed, it’s often simpler and clearer to write a new Will, so everything is correctly outlined.
Yes, a Power of Attorney (POA) can be investigated if there are concerns about wrongdoing. When someone appoints a POA, they’re trusting that person to make decisions in their best interest. But what if that trust is broken? Thankfully, there are systems in place to protect vulnerable individuals, and allegations of abuse or misconduct by attorneys or court-appointed deputies are taken very seriously.
In recent years, there has been a noticeable increase in the number of investigations. This is partly due to the rising number of registered powers of attorney and deputyship orders. For instance, in the financial year 2023/24, there were 3,647 investigations, up from 2,849 last year.
A POA comes with significant responsibility, and there are clear rules about how an attorney should act. Here are some reasons why an investigation might be triggered:
The Office of Public Guardian is authorised to investigate allegations of abuse by deputies and attorneys who are acting under a registered lasting or enduring power of attorney, or a court order. If anyone has concerns about the actions of a deputy or attorney, they can report these concerns to the Office of Public Guardian, who will then assess whether an investigation is warranted.
The criteria for an investigation to commence include:
It is important to note that an investigation does not necessarily mean that fraud or abuse has occurred. Often, investigations reveal that there is no wrongdoing. In some cases, the result may be providing guidance to the attorney or deputy rather than taking formal action. Mediation can also be a solution, helping to resolve disputes between the attorney or deputy and others involved in the care of the person at risk.
Although it is possible to complete the relevant forms yourself, it is highly advisable to get an experienced LPA solicitor to set this up for you because the forms can be complicated and mistakes could be costly and result in your LPA application being rejected.
There are many issues to consider, but your solicitor can help you to avoid many pitfalls and make the right decision in regard to the following:
Using a solicitor to help you set up your LPA will certainly save you time and money, as well as provide you with the peace of mind that the LPA has done correctly and that your best interests are being looked after.
No, you do not need a solicitor to set up a Lasting Power of Attorney (LPA). For instance, if you prefer, you could get someone else who you trust to complete the online form or paper version to set up a power of attorney. This could be a friend, family member or solicitor.
However, because the LPA is a binding legal document that will impact your financial and healthcare decisions, it’s important that it is drafted and registered correctly with the Office of Public Guardian and checked by a solicitor.
Using a solicitor rather than applying yourself will ensure that there are fewer risks of mistakes being made or the law not being fully understood because of the legal terminology that is used in the application process. Setting up a power of attorney can take up to 20 weeks and requires the signatures of witnesses.
As the LPA is a legally binding document, it is important to contemplate these different scenarios (mentioned above) and make sure that the LPA is drafted by a professional legal expert. A poorly drafted document could prove to be invalid or ineffective.
It’s also best to think of the LPA as an insurance policy and plan ahead, so that if someone
suffers an accident or becomes ill, they can be reassured by the thought that their wishes are being carried out and important decisions are being made correctly.
One of the most common reasons for power of attorney rejections is due to inaccurate documents being submitted or mistakes being made in the application process. To save time and money, it can be a good idea to ask a professional LPA solicitor to set up the power of attorney on your behalf.
When setting up a Lasting Power of Attorney (LPA), you can either complete the process yourself or instruct a solicitor to help.
It costs £82 to register each LPA, unless you qualify for a reduction or exemption. If you're registering both a property and financial affairs LPA and a health and welfare LPA, the total cost would be £164. These fees are set by the Office of the Public Guardian (OPG) and are separate from any solicitor costs.
If you happen to make a mistake on your application form, the Office of the Public Guardian may allow you to correct it and reapply within 3 months for a reduced fee of £41, depending on the type of mistake made.
If you instruct a solicitor to help with the LPA application, this will include further fees.
It's important to note that there are options available to get a reduction or exemption from these fees. If you earn less than £12,000, you can apply for a reduction. Additionally, individuals on certain benefits, such as Income Support, may be eligible for an exemption from the registration fees.
Although you can create and submit a Lasting Power of Attorney document yourself, it’s often better to have a specialist LPA solicitor do the work for you.
At GloverPriest, our experts provide a comprehensive, personal service and are highly qualified to give you and your family the very best legal advice.
Let GloverPriest give you friendly, highly skilled, professional support to ensure your wishes are respected.
Our expert Wills, Trusts, LPA and Probate solicitors are here to help you plan for your family’s future.
Call us directly on 01217 945814 or complete our contact form.
General powers of attorney grant somebody you trust the authority to deal with your affairs, although you still have your own facilities.
There are two categories of Power of Attorney: Ordinary, and Lasting which is the most usual form. Lasting Power of Attorney (LPA) must be drawn up whilst the person, known as the ‘donor’, still has the mental capacity to authorise who may make decisions on their behalf if they lose the ability to do so for themselves. In addition, there are two kinds of LPA – you can make one or both types. The Health and Welfare LPA allows decisions to be made about, for example, your medical care, moving into a care home and accepting/refusing life-sustaining treatment, whereas the Property and Financial Affairs LPA covers decisions about money and property. An Ordinary Power of Attorney is a legal document which allows someone to act on your behalf concerning your finances whilst you still have the mental capacity to monitor what they are doing – for example, if you had to go into hospital.
Your wife would not automatically be able to access your finances and would have to go through the Court of Protection which would control your assets. The idea behind this court is to safeguard the assets of vulnerable people. That’s why it is so important to grant someone you trust Lasting Power of Attorney to avoid problems in the future. The Court of Protection charges to deal with your affairs and the process can be very long-winded which can prevent them from making decisions that you may need answers for quickly. The charges that are made can reduce the money you have available.
A Lasting Power of Attorney (LPA) is a document confirming that someone (the attorney) has the authority to make decisions about your finances, health and welfare.
In the event that you lose your mental capacity to make decisions or simply no longer want to handle your own affairs, an attorney will be given the authority to make decisions for you. This could include where you are cared for or live, your daily routine and diet, medical care and treatment options.
You will have to choose if your attorney is given the right to make decisions about life-sustaining treatment such as artificial ventilation or CPR. If this right is not given to your attorney, it would then be up to the medical team in charge of your care to decide the most appropriate life-sustaining treatment.
In this case, an attorney cannot demand treatment on the person’s behalf but has the right to access the person’s medical records. If a care manager or doctor thinks that an attorney is not acting in the person’s best interests, they can challenge their decisions.
Being next of kin does not grant legal authority to make decisions on behalf of a relative, whether regarding health care or finances. This misconception often arises in situations such as hospitalisation, where individuals believe their familial relationship automatically gives them decision-making rights. However, the reality is that such decisions require a Lasting Power of Attorney (LPA) to be in place. An LPA empowers individuals to appoint someone to act on their behalf, making decisions about their welfare and finances if they become unable to do so themselves.
A Power of Attorney provides a legal framework for decision-making and financial management, protecting both the individual creating it and the appointed attorney. This document ensures clarity and accountability in decision-making processes, especially in situations where capacity is lost. It is essential to plan one's estate within legal parameters, including appointing attorneys and clearly outlining wishes, to avoid potential family conflicts and ensure a smooth transition of responsibilities when needed.
No, in the UK, a Lasting Power of Attorney (LPA) does not continue to be valid after the donor’s death.
If you have the mental capacity to do so, you can end a lasting power of attorney yourself as the donor by sending the original LPA to the Office of Public Guardian and completing a “deed of revocation” which is a statement confirming that you are ending the LPA. This will need to be signed and witnessed.
Other ways an LPA can end are if the attorney loses their ability to make decisions on behalf of the donor and therefore they are no longer able to act in their best interests. Alternatively, if the attorney is married to the donor and they divorce, the LPA ends. The LPA will also end if the attorney dies or becomes bankrupt.
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