What is the difference between a Lasting Power of Attorney (LPA) and an Enduring Power of Attorney (EPA)?

EPAs were replaced by LPAs in October 2007. An EPA only covers property and financial affairs, whereas LPAs cover both property and financial affairs, and health and welfare. If you have a valid EPA made before October 2007, it remains valid and only needs to be registered with the OPG if the donor starts to lose mental capacity. New EPAs cannot be made.

Can I make an LPA if I've already lost some mental capacity?

No. You must have the mental capacity to understand the document and its implications when you create and sign an LPA. If capacity is a concern, a medical professional may need to assess this. If capacity has already been lost, a Deputyship Order from the Court of Protection would be the alternative.

Do I need a solicitor to set up an LPA?

No, you can complete the forms yourself via the GOV.UK website. However, the forms are complex, and errors can cause delays or invalidate the LPA. Many people choose to use a solicitor for peace of mind, especially for Health and Welfare LPAs or if their situation is complex.

How much does it cost to register an LPA?

There is a fee payable to the Office of the Public Guardian (OPG) for registering each LPA. You may be eligible for a reduction or exemption if you are on certain benefits or have a low income. This fee is separate from any charges a solicitor might make for preparing the LPA.

What if my attorney abuses their power?

The Office of the Public Guardian (OPG) has a duty to protect people who have appointed an attorney. If you or someone else has concerns that an attorney is not acting in the donor's best interests or is abusing their power, you can report this to the OPG, who can investigate and take action if necessary.

Power of Attorney: A Complete Guide

Understanding Power of Attorney: A Complete Guide for Families

Navigating the complexities of care for a loved one often extends beyond their immediate physical and emotional needs. It also involves ensuring their financial and welfare decisions are managed appropriately, especially if they lose the capacity to make these decisions themselves. This is where a Power of Attorney becomes incredibly important. It's a legal document that allows someone you trust to make decisions on your behalf.

At Care Directory UK, we understand that discussing and planning for a time when a loved one might not be able to make their own choices can be daunting. This guide aims to demystify Power of Attorney, explaining what it is, why it’s crucial, and how to set one up in the UK, offering practical advice and signposting to professional support.

What is a Power of Attorney?

A Power of Attorney (PoA) is a legal document that gives one person (the 'attorney') the authority to act on behalf of another person (the 'donor') in specified matters. While there are different types, the most relevant for long-term planning and care situations in the UK is the Lasting Power of Attorney (LPA).

It's vital to understand that setting up an LPA is a decision made by someone while they still have the mental capacity to do so. It’s about planning for the future, not reacting to a crisis. Once someone has lost mental capacity, it's generally too late to create an LPA, and a more complex and often more expensive process through the Court of Protection may be necessary.

Why is an LPA so important?

Peace of Mind: Knowing that trusted individuals will manage your affairs if you can't, provides significant reassurance for both the donor and their family.
Avoiding Delays and Stress: Without an LPA, family members may face significant hurdles and delays in accessing funds or making crucial decisions, often at a time of immense stress.
Protecting Wishes: An LPA ensures that decisions are made in line with the donor's preferences and best interests, as outlined in the document.
Avoiding Court of Protection Intervention: If no LPA is in place and someone loses capacity, a 'deputyship' order from the Court of Protection may be needed, which can be a lengthy, costly, and intrusive process.

Types of Lasting Power of Attorney (LPA)

In England and Wales, there are two distinct types of Lasting Power of Attorney, and it's common for people to set up both:

1. Lasting Power of Attorney for Property and Financial Affairs

This LPA grants your attorney the power to make decisions about your money and property. This can include:

Managing bank and building society accounts.
Paying bills.
Collecting benefits or pensions.
Selling your home.
Investing money.

You can specify whether this LPA can be used as soon as it's registered (with your permission) or only when you lose mental capacity. Many people choose for it to be active immediately, allowing their attorney to assist with financial management even if they still have capacity but find it difficult to manage themselves.

2. Lasting Power of Attorney for Health and Welfare

This LPA covers decisions about your health and personal welfare. It can only be used when you no longer have the mental capacity to make these decisions yourself. This can include:

Where you live (e.g., whether you move into a care home).
Your day-to-day care (e.g., diet, daily routine, clothing).
Medical treatment decisions (including life-sustaining treatment, if you give them explicit permission).
Who you have contact with.

The Health and Welfare LPA only comes into effect when the donor has lost mental capacity. The Property and Financial Affairs LPA can be used while the donor still has capacity, if they choose, or only once capacity is lost.

Who Can Be an Attorney?

You can appoint one or more attorneys. They must be over 18 and have the mental capacity to make their own decisions. Common choices include family members (spouses, children, siblings) or close friends. You can also appoint a professional such as a solicitor.

Key Considerations When Choosing Attorneys:

Trust: They must be someone you trust implicitly to act in your best interests.
Reliability: They should be organised and capable of handling responsibilities.
Communication: They should be able to communicate effectively with you and other relevant parties.
Availability: Consider their own health and age – will they likely be able to fulfil the role when needed?
Professional vs. Lay Attorney: Professional attorneys (e.g., solicitors) will charge for their services but offer expertise and impartiality. Lay attorneys (friends/family) are usually unpaid but may need support.

You can appoint attorneys to act 'jointly' (they must all agree on every decision), 'jointly and severally' (they can act together or independently), or a combination for different decisions. Most people opt for 'jointly and severally' to avoid potential deadlock if one attorney is unavailable.

It's also wise to appoint replacement attorneys in case your primary attorneys are unable to act.

How to Set Up a Lasting Power of Attorney

Setting up an LPA involves several steps, and it's crucial to follow the correct legal procedures. The Office of the Public Guardian (OPG) is responsible for registering LPAs in England and Wales.

The Process:

Decide Your Attorneys: Choose who you want to appoint and discuss the role with them to ensure they understand and agree.
Choose a Certificate Provider: This is an independent person (e.g., a solicitor, doctor, or someone with relevant professional experience) who confirms you understand the LPA and are not being pressured into making it. They also confirm there's no fraud.
Complete the Forms: You can do this online via the GOV.UK website or by requesting paper forms. The forms are detailed and require careful completion.
Sign and Witness: The forms must be signed by you, your attorneys, and the certificate provider, all in the correct order and witnessed appropriately.
Register the LPA: Once completed and signed, the LPA must be sent to the Office of the Public Guardian (OPG) for registration. There is a fee for registration. The LPA is not legally valid until it is registered.

It is essential to create and register an LPA while the donor still has mental capacity. If capacity is lost before registration, the LPA will not be valid.

Using a Solicitor vs. Doing it Yourself

You have two main options when preparing an LPA:

Do it Yourself: You can complete the forms online or by post via GOV.UK. This is the most cost-effective option, but requires careful attention to detail to avoid errors that could lead to rejection or future problems.
Use a Solicitor: A solicitor will guide you through the process, ensure the forms are correctly completed, act as your certificate provider, and handle the registration with the OPG. While more expensive, it offers peace of mind that the LPA is legally sound and minimises potential issues. This is often recommended for more complex situations or if you feel unsure about the process.

The Role of the Office of the Public Guardian (OPG)

The OPG is a government body that protects people in England and Wales who may not have the mental capacity to make decisions for themselves. Their responsibilities include:

Registering LPAs and Enduring Powers of Attorney (EPAs – an older type of PoA).
Supervising deputies appointed by the Court of Protection.
Investigating concerns about registered attorneys or deputies.

They provide guidance and forms for creating LPAs and are the central authority for their registration and oversight.

What Happens if There's No LPA?

If a person loses mental capacity without a registered LPA, their family or friends cannot automatically step in to manage their affairs. Instead, someone would need to apply to the Court of Protection to become a 'deputy'.

Court of Protection: This court makes decisions on financial or welfare matters for people who can’t make decisions for themselves.
Deputyship Order: A deputy is appointed by the court and given specific powers to make decisions. This process is often more expensive, time-consuming, and less flexible than an LPA. The court also supervises deputies, which can involve ongoing reporting.
Limited Control: The court decides who the deputy will be and what powers they have, which might not align with the person's wishes if they had been able to express them.

Creating an LPA is a proactive step that gives you control over who makes decisions for you and how those decisions are made, avoiding the need for potentially more intrusive court intervention.

Reviewing and Revoking an LPA

Life circumstances change, and it's good practice to review your LPA periodically, especially after significant life events like marriage, divorce, or the death of an attorney. As long as you still have mental capacity, you can change or revoke your LPA.

To revoke an LPA, you must send a signed and dated document called a 'deed of revocation' to the OPG, along with the original LPA document. It's advisable to seek legal advice if you wish to make changes or revoke an LPA.

Power of Attorney in Scotland and Northern Ireland

While this guide focuses on England and Wales, it's important to note that the rules for Power of Attorney differ in other parts of the UK:

Scotland: A 'Continuing Power of Attorney' covers financial affairs, and a 'Welfare Power of Attorney' covers personal welfare. Both are registered with the Office of the Public Guardian (Scotland).
Northern Ireland: An 'Enduring Power of Attorney' covers financial and property matters. There is no equivalent to a Health and Welfare LPA; instead, the courts make decisions on personal welfare if capacity is lost. These are registered with the Office of Care and Protection in Northern Ireland.

If you or your loved one are based in Scotland or Northern Ireland, you should seek specialised legal advice relevant to your jurisdiction.

Understanding and setting up a Lasting Power of Attorney is a fundamental part of planning for the future and ensuring your loved one's wishes and best interests are protected. While the process can seem complex, the peace of mind it offers is invaluable. Don't hesitate to seek professional guidance to ensure everything is set up correctly.

Where to Find Professional Support and Information

For comprehensive advice and assistance with setting up a Lasting Power of Attorney, please consult the following organisations:

GOV.UK - Make a Lasting Power of AttorneyVisit →

Office of the Public Guardian (OPG)Visit →

Solicitors Regulation Authority (SRA) - Find a SolicitorVisit →

Age UK - Power of Attorney adviceVisit →

Citizens Advice - Lasting Power of AttorneyVisit →

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