What is a lasting power of attorney?
A lasting power of attorney enables a person to plan how they would want their affairs to be dealt with if they were to lose capacity and become unable to manage things themselves.
Mental capacity can be lost through ill health, injury or age. If a lasting power of attorney (or LPA as it is sometimes called) is not made then this can create difficulties and expense for family and friends.
Prior to LPAs being introduced, attorneys were appointed under an ‘enduring power of attorney‘. These EPAs remain valid.
Benefits of a lasting power of attorney
By making a lasting power of attorney, you can specify how you would like your money, property and affairs to be managed and who you want to be responsible for the management of your affairs.
It enables you to:-
- Appoint someone you can trust and rely on to look after your affairs;
- Set out clearly what your wishes are;
- Choose who you want to be notified about the lasting power of attorney when it is registered;
- Specify what powers your attorney will have; and
- Safeguard your religious or moral beliefs concerning “end of life” medical treatment.
An LPA can also save you money as it avoids the need for an application to be made to the Court of Protection for a deputy to be appointed, which can be an expensive exercise.
Types of lasting power of attorney
There are two different types of LPA.
- Property and financial affairs LPAs
- Health and welfare LPAs
Property and financial affairs LPAs
The lasting power of attorney for property and financial affairs gives you the option to choose one or more people to act as attorney for you and take decisions on your behalf. The LPA must be created while you still have mental capacity. It is primarily designed for situations where you lose mental capacity. However it can also be used if you are mentally capable of dealing with your own affairs but are physically unable to do so, or you just want someone else you trust to deal with matters.
Before your attorney can act for you under the LPA, it must be registered with the Office of the Public Guardian. Some people have the LPA registered at the time it is made even if their attorney does not begin to assist them immediately.
Health and welfare LPAs
The lasting power of attorney for health and welfare similarly allows you to choose one or more people to make welfare-based decisions on your behalf. This will include things like medical treatment, housing and such like. It can also deal with decisions about receiving life sustaining treatment. This type of LPA can only be implemented if you lose capacity and are unlikely to recover sufficiently to be able to make the necessary decisions yourself. Again, before your attorney can begin to act under it, the LPA must be registered with the Office of the Public Guardian.
Making a lasting power of attorney
A lasting power of attorney can be made at any time so long as you still retain the power to make decisions, and are over 18 years of age. However, once mental capacity has been lost then it will be too late to make a LPA. In these circumstances it will be necessary for an application to be made to the Court of Protection for a deputy to be appointed.
Registering a power of attorney
A lasting power of attorney needs to be registered with the Office of the Public Guardian (OPG) before your attorney can begin to act under it. The registration process requires a number of official forms to be completed and submitted. As a safeguard, objections to the registration can be made by anyone who you specified must be notified in the LPA. If no objections are raised then the lasting power of attorney will be registered.
A court fee is payable when the LPA is submitted for registration though you may be entitled to apply for an exemption if the donor receives any of the certain means tested benefits.
What are the benefits of a LPA?
There are two principal benefits of making a LPA: control and expense.
By making a LPA you will maintain greater control over how your affairs will be managed if you lose capacity. If you do not make a LPA and become incapacitated due to old age, illness or accident then the onus is on the Court of Protection to appoint a deputy. Rather than abdicating responsibility and allowing a third party who may not be of your choosing to decide how your affairs should be administered and who should administer them, a simple LPA will allow you to decide this in advance and appoint an attorney of your own choosing; someone who you absolutely trust.
If you do not make a LPA and go on to lose capacity then someone will be called upon to apply to the Court of Protection to become your deputy. This may be a close relative or friend, or it could be a professional deputy such as a solicitor. If no one steps forward then the Office of the Public Guardian (OPG) will be called upon to appoint a deputy to make decisions on your behalf. Preparing and registering a LPA is by far the cheaper option. The OPG has estimated that the cost of having a Court of Protection deputy appointed is at least twelve times as much as a LPA. There are also ongoing supervision costs and the costs of implementing and maintaining a bond in most cases as well as the risk of abuse by deputies who are not qualified solicitors.
Office of the Public Guardian campaign
The OPG is campaigning to encourage every adult in England to draw up a lasting power of attorney. The number of LPAs registered with the OPG has risen significantly in the last few years. The OPG is anticipating 225,000 new LPAs to be registered annually, with the number of registered LPAs to double in the next three years.
We think of having a LPA in place is rather like an insurance policy. You may not ever need to rely upon it, but if you do it will benefit you enormously.
Do I need a solicitor to prepare and register my LPA?
The simple answer is ‘No’. There is nothing to stop you from making and registering your own LPA.
However, statistics published by the Office of the Public Guardian (OPG) indicate that around 75% of all LPAs are registered with help from professional advisers, most of whom are solicitors.
The OPG has found that many people try to prepare the paperwork themselves, but end up consulting a solicitor. The danger is that people fail to end up with a validly registered LPA or have one that is open to legal challenge. They also risk losing the registration fee.
If the LPA is not drawn up properly and needs to be registered because you have lost your mental capacity there is a very real risk that registration will be refused by the OPG. If this happens then your family will be faced with applying to the Court of Protection to become your deputy because you will not have the mental capacity to make a new LPA. This could prove to be costly in both time and money.
Advantages of a specialist LPA solicitor
It generally pays to retain a specialist LPA solicitor with the experience and expertise in making and registering LPAs.
With the deregulation of legal services, a number of non-qualified, unregulated companies have entered the scene. These companies are not solicitors, though sometimes this is not clear from their marketing material or websites.
The danger is that they are inexperienced and not entirely familiar with the law in this complex area. And if something goes wrong, you could be left without any redress as they may be uninsured and not governed by any regulatory professional body.
Sometimes these companies attract clients by offering to undertake work at cut prices. Other companies actually charge more than regulated, qualified solicitors.
What will a LPA cost?
An LPA will probably cost less than you think.
According to the Office of the Public Guardian statistics, solicitors charge up to £1,000 for preparing and registering a LPA.
However, our fixed fee is just £445 plus VAT for one person wanting one type of LPA or £645 for a couple each having one LPA .
If you would like both types of LPA (financial and health) then the fee is £495 plus VAT for one person and £695 for a couple.
Our fixed fee LPA service includes:-
- Preparation of legal forms;
- Advice on signing legal forms;
- Advice on appointing attorneys;
- Provision of a “certificate” if required – although if you use another professional they may charge an additional fee;
- Arranging for attorneys to sign the forms;
- Submitting forms and fees to the OPG;
- Informing “Persons to be notified” that an application is being made for the LPA to be registered; and
- Advising and applying for OPG fee exemptions.
We also offer FREE use of our Court of Protection legal helpline, giving you access to up to date legal advice concerning LPAs and Court of Protection issues.
Call us on 0808 139 1606 or email us at [email protected]