Lasting powers of attorney
What is a lasting power of attorney?
A “lasting power of attorney” is a legal document in which you appoint someone to make decisions on your behalf. The person so appointed is referred to as an “attorney”.
What sort of decisions can an attorney take?
The decisions an attorney can make on your behalf will depend upon what sort of lasting power of attorney has been made and what powers the attorney has been given in the lasting power of attorney.
There are two types of lasting power of attorney, a “health and welfare lasting power of attorney”, where an attorney is granted the power to make decisions about your health and welfare, and a “property and financial affairs lasting power of attorney” where an attorney is given the power to make decisions about your property and financial affairs.
Irrespective of the type of lasting power of attorney, the attorney is under a duty to only make decisions which are in the “donor’s” best interests (a “donor” is the person who makes the lasting power of attorney).
Can anyone make a lasting power of attorney?
A person must have the “mental capacity” to make a lasting power of attorney for it to be valid. They must also be at least 18 years old.
For a person to have the required mental capacity they must be able to understand and remember information for long enough and be able to weigh up information to enable them to make a decision. They must also be able to communicate in some manner.
When can a lasting power of attorney be used?
A lasting power of attorney cannot be used until it has been registered with the “Office of the Public Guardian”.
Once it has been registered it can be used immediately if you have taken the decision that you no longer wish to make decisions for yourself. You may no longer wish to make decisions for yourself if, for example, you have moved into a care home and would prefer a close family member to manage your financial affairs.
Alternatively, a lasting power of attorney can be used at such time in the future when you are no longer able to make your own decisions because you lack the mental capacity to do so.
If you have made a health and welfare lasting power of attorney it will not be able to be used until you have lost the mental capacity to make your own decisions.
How do I make a lasting power of attorney?
To make a lasting power of attorney you must complete a “lasting power of attorney form”. A copy of the form can be obtained from the Office of the Public Guardian or can be downloaded from their website.
The lasting power of attorney form consists of 3 parts. These are as follows:
Part A – The Donor’s statement
At Part A you should fill in your own details and the details of the person who you want to appoint as your attorney. You should also set out how you would want your attorney to act. You can place restrictions or conditions on the decisions your attorney can make or give guidance to your attorney as to how they should make their decisions.
At Part A you should also give the names of anyone you wish to be notified of the lasting power of attorney once an application for it to be registered has been made.
You should sign Part A in the presence of a witness.
Part B – The Certificate Provider’s statement
Part B should be completed by a “certificate provider”. A “certificate provider” is a person who has discussed with you in private the powers you are giving to your attorney and is satisfied that you understand what you are doing and that there has been no fraud or undue pressure placed on you to make the lasting power of attorney.
A family member or your attorney cannot be a certificate provider, but anyone else can be.
If you have not named anyone in Part A to be notified when your application to register the lasting power of attorney is made, Part B will need to be completed by 2 certificate providers.
Part C – The attorney’s statement
Part C should be completed by your attorney, or if you wish to appoint more than one attorney, by each of them. Your attorney should provide their details at Part C and should confirm that they understand the legal duties they will have as your attorney.
Part C should be signed by your attorney and their signature should be witnessed.
When should the lasting power of attorney be registered?
A lasting power of attorney cannot be used until it has been registered with the Office of the Public Guardian. If you want the lasting power of attorney to be used as soon as possible you will, therefore, need to apply to register it as soon as you have received it. If your lasting power of attorney is only to be used in the event that you lose your mental capacity at a future date it can be registered by your attorney as and when the need arises.
How do I register a lasting power of attorney?
To register your lasting power of attorney you will need to complete 2 forms and send them to the Office of the Public Guardian together with a fee to cover the cost of registration and the original lasting power of attorney form. The forms can be obtained from the Office of the Public Guardian or downloaded from their website. Details of the fee can also be found on their website.
The forms which need to be completed are as follows:
Form LPA001
Form LPA001 is also referred to as the “notice of intention to apply for registration of a lasting power of attorney”. The purpose of this form is to ensure that anyone you named at Part A of the lasting power of attorney form is given notice of the application to register the lasting power of attorney. This enables them to object to the registration if, for example, they think that you may have been pressurised into making the lasting power of attorney. They will have up to six weeks to make any objections.
Form LPA002
Form LPA002 is also referred to as the “application to register a lasting power of attorney”.
The form serves as a request for the registration of the lasting power of attorney.
Assuming that the forms have been filled in correctly and no one objects to the registration, the lasting power of attorney will then be registered.