Lasting Power of Attorney FAQs

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LPA FAQs

1. What are Lasting Powers of Attorney or ‘LPAs’?

An LPA is a legal document that allows you to appoint one or more people as ‘attorneys’ to make decisions on your behalf should you lose the ability to deal with your financial and/or health affairs yourself.

This gives you more control over what happens to you if, e.g., you’ve had an accident or an illness and cannot make financial/health decisions at the time they need to be made.

2. How do I make a Lasting Power of Attorney?

You can make an LPA online or using paper forms. In both cases, you’ll need to get other people to sign the forms, including your chosen attorneys and your independent witness(es).
You can get someone else to use the online service or fill in the paper forms for you, (family or friend) or a solicitor.
Once the LPA is completed, you must register it, or your attorney will not be able to make decisions for you.

3. Why use a solicitor to make my LPA?

Using a solicitor to help prepare, complete and register your LPAs is risk averse – you’ll avoid any potential issues arising in the documents or registration process.

There may be a need for appointing replacement attorneys, and also using specific legal wording to ensure the LPAs operate correctly in the context of your financial/health circumstances – using a solicitor is the best way to ensure your LPAs aren’t rejected causing costly delays in the process.

Ensuring any expressions of key wishes you may have are kept private also means a solicitor is best suited to assist you as they can store this privately with your original documents.

To prevent the validity of your LPA being challenged (e.g., if someone were to raise concerns over capacity)
Sometimes it may be difficult for you to decide which procedure to use. In this case go with the one you think is right. The chances are, as long as you make it clear to your employee what the allegation is, which procedure you’re following and why you’ve chosen that procedure, your decision is unlikely to be criticised.

4. What happens if I don’t have Lasting Powers of Attorney?

The consequences of not having an LPA are that if you lose the capacity to deal with your affairs yourself, a ‘deputy’ would need to be appointed. A deputy is court-appointed and could well be someone you wouldn’t have wanted to deal with your affairs.

If a deputy’s application is refused, e.g., the local council may be appointed instead. Your family will have to pay extra to apply for and maintain a deputyship. You also may not be able to sell jointly held assets until the court appoints a deputy.

The process is long and arduous and typically very costly (particularly when compared to the price of getting LPAs in place).

5. Why do I need Lasting Powers of Attorney?

To give you peace of mind and to avoid family having to go to Court to appoint someone on your behalf, should you lose capacity.

To enable those you trust to look after your affairs (financially, this can happen even while you have capacity, so long as you provide consent to your attorneys / health-wise, this LPA will only be used if you lose capacity, and family are usually the best choice to help deal with those sensitive issues).

6. What are the different types of Lasting Powers of Attorney and what are they used for?

• Health and Welfare; and
• Property and Financial Affairs (also used for business assets by way of a separate LPA).

You can choose to make one type of LPA or both.
Your Health LPA will give an attorney the power to make decisions about things like:
• Your daily routine, including for example: washing, dressing and eating
• Medical care
• Moving into a care home
• Life-sustaining treatment

It can only be used when you are unable to make decisions.
Your Property and Financial LPA will give an attorney the power to make decisions about things like:
• Managing a bank account
• Paying bills
• Collecting benefits or a pension
• Selling your home

7. Who should I make my Attorneys?

Family is typically a good starting point – your attorney could be a family member, a friend, your spouse, partner or civil partner. Alternatively, they could be a professional, such as a solicitor or accountant.

You should think carefully about appointing the same people e.g., to act over your personal financial affairs as opposed to your business affairs as it may not be appropriate (perhaps there’s someone more ‘business savvy’ that would be better suited to the role).

It’s a good idea to give the person you ask time to think about the role, to make sure they feel comfortable doing it.

8. How do I register my Lasting Powers of Attorney?

Registration of LPAs is carried out at the Office of The Public Guardian (OPG), for a fee (currently £82 per LPA unless you can show you earn under £12,000 in a year or are on any of the means-tested benefits detailed on the Gov website).

Once the LPAs are completed (fully signed/witnessed by all parties) the OPG will take on average 6-8 weeks to register the documents.

9. Can I stop being an Attorney?

Yes – you can disclaim your appointment by completing an OPG Form, accessible from the Gov website. As part of the disclaimer process, you will need to send the original form to the Donor (the person that made the LPA appointing you as attorney) to notify them. If there are other attorney’s, you will also need to send a copy of the form to them.

10. What does the Court of Protection do?

The Court of Protection makes decisions and appoints deputies to act on a person’s behalf if they’re unable to make decisions about their personal health, welfare and/or finances/property.

11. What is Deputyship?

Deputyship is a way of obtaining the legal authority to make decisions on someone else’s behalf, when that person no longer has the ability to make those decisions for themselves (and therefore cannot create an LPA appointing attorneys). The application is only the beginning of a longer process – as someone’s deputy, there are continuing duties / responsibilities that you will be expected to carry out in the future, therefore proper advice from a trained legal professional is highly recommended before proceeding.

12. What is the difference between a Lasting Power of Attorney and an Enduring Power of Attorney?

Enduring Powers of Attorney (EPAs) could be set up until 1 October 2007 and enabled a person (donor) to name a person/s to look after their affairs if they lost the capacity to manage them themselves. EPAs were strictly limited to the financial affairs of that person and could not govern their health and welfare concerns. EPAs can no longer be made but if you have one dated prior to 1 October 2007, it is still valid.

Lasting Powers of Attorney (LPAs) are split into two types: Property & Finances and Health & Welfare.

The main difference between EPAs and LPAs is that an LPA must be registered with the Office of the Public Guardian (the Government body who process the legal documentation) before it can be used whereas an EPA can be used from the moment it is signed/dated and is only required to be registered once the donor loses capacity. The benefit of LPAs is that they are usually registered once completed – this means there is no delay when the person loses capacity and urgent decisions need to be made.

13. Are Lasting Powers of Attorney valid after death?

If the donor dies, the LPA is no longer valid. All decisions about the property of the deceased will then be dealt with by the terms of the donor’s Will, if they left one, or otherwise by the Intestacy rules if they didn’t leave a Will. If the donor survives but an attorney dies, the LPA is still valid if there is another attorney on the LPA either as a substitute or otherwise acting jointly and severally with other appointed attorneys. The LPA is no longer valid if no attorneys are left to act (i.e., the attorney has died or disclaimed their appointment).

14. Can I have a Lasting Power of Attorney for my business assets?

Yes, there is a section in the Property & Finances LPA application form where you can write instructions for your attorneys. In this case, you’ll want to make two LPAs for financial decisions, one for your personal finances, and the other for your business affairs, so that different attorneys can look after your separate personal & business assets, avoiding potential conflicts of interest. You should explain what you want to happen in the instructions for each LPA – specific, legally acceptable wording is required to avoid the LPA application being refused – please consult us for further guidance on this.

15. How long does it take to register Lasting Powers of Attorney?

Once an LPA application and accompanying fee is sent off to the Office of the Public Guardian, you should expect to receive the registered documents back within approximately 12 weeks.

16. How and when do I use my Lasting Powers of Attorney?

If you are an attorney and you need to use your powers under the LPA, when you can use them will depend on the type of LPA. For Property & Finance LPAs, these may give you permission to make decisions while the donor still has the mental capacity to make their own financial decisions. If it doesn’t, you can only start making decisions when the donor has lost mental capacity. Institutions such as banks will very likely want to see the original or certified copy LPA to prove you have the donor’s authority to act on their behalf.

For Health & Welfare LPAs, you can only make decisions when the donor has lost mental capacity and not before. Where applicable, you should also inform the donor’s doctor and other healthcare staff care workers, social worker and other social care staff about the Health LPA appointment – they may want to see your proof of identity and either the original or a certified copy LPA before releasing any information on a formal capacity assessment.

17. Can I make a Lasting Power of Attorney if I have dementia?

If diagnosed with dementia, a person may still be able to fulfil a lasting power of attorney role providing they have the mental capacity to do so.

18. If I make a Lasting Power of Attorney, will it affect what’s in my Will?

A Will protects your beneficiaries’ interests after you’ve died but a lasting power of attorney protects your own interests while you are still alive, until death. Once you die, your power of attorney ceases and the Will ‘takes over’. An attorney’s powers under an LPA do not extend to amending a Will.

19. When should I apply to the Court of Protection?

An application to the Court of Protection (COP) may be needed in relation to Financial and/or Health & Welfare decisions where a person lacks mental capacity for making those decisions (and they don’t already have a registered LPA in place).

You can apply to the COP to get an urgent or emergency Court Order in certain circumstances, for example when someone’s life or wellbeing is at risk and a decision has to be made without delay. If the Court agrees, you’ll be able to make the necessary decision on behalf of the person who lacks mental capacity. You’ll not get a Court Order in this way unless the court decides it’s a serious matter with an unavoidable time limit.

Apply for an urgent interim order

You can get an urgent interim order if you’re applying to become a deputy but your application has not yet been approved. If your application is approved, you can make a decision on the other person’s behalf.

The order must be for a specific, one-off decision that needs to be made without delay, e.g., to get money from the person’s bank account to pay outstanding nursing home fees.

20. How much do Deputyship applications cost, including Court Fees?

At the time of writing, the Court fees for Deputyship are:

  • £371 for each application made;
  • £494 if a hearing at Court is required to decide the application;
  • £100 one-off assessment fee if you’re a new deputy;
  • £5 for each extra copy document (e.g., Court Order) requested.

After a successful Deputyship application, there is a supervision fee also applicable every year after you have been appointed, payable by 31 March every subsequent year following application approval:

  • £320 for general supervision;
  • £35 for minimal supervision, this will apply to property and affairs deputies managing estates worth less than £21,000).

There’s no fee for an urgent interim order application.

The costs of setting up a Deputyship Application through solicitors will depend on the size and complexity of the case and how many applications need to be made. We offer a no-obligation 30-minute consultation to establish what would best suit your needs.

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