Steps to follow
If you feel there may be a time in the future when you don’t want to make decisions about your property and financial affairs or your health welfare, or you feel you might lack the mental capacity to make such decisions for yourself, you might consider creating a Lasting Power of Attorney (LPA).
An LPA is a legal document that allows you (the donor) to choose someone you trust (the attorney) to make decisions for you.
You must be over the age of 18 to make an LPA and you can’t have one jointly with someone else: each person must make his/ her own.
There are two types: a property and affairs LPA, which allows the attorney to decide how you handle your money, your property and other financial matters; and a personal welfare LPA, which empowers the attorney to make decisions about your healthcare and welfare, including issues such as whether to refuse or consent to treatment for you and deciding where you live.
An LPA can be drafted at any time as long as you have capacity (ie, you are still mentally capable) but it must be registered with the Office of the Public Guardian to be valid.
A registered LPA can be used at any time, whether you have the mental ability to act for yourself or not.
To set up an LPA you can fill in the online form on the Office of the Public Guardian website or you can get a solicitor to do it for you (probably a good idea if your affairs are complicated).
You can choose whoever you like to be your attorney but they need to be someone you really know and trust and you should consider how well the manage their own affairs before making your decision.
It’s a good idea to have more than one attorney as this lessens the chance of abuse. Whoever you pick, you must make sure they have been told about it.
There are a number of safeguards to protect you if you make an LPA, one of which is the requirement that you choose a named person who will be notified when an application is made to register your LPA. They have the power object to the registration of the LPA if they are worried about it. You must also select a certificate provider to complete a Part B Certificate in the LPA form. They must confirm that you understand the LPA and you’ve not been pressured into making it. Finally you’ll need to find yourself a witness who will sign the LPA form to confirm that they witnessed you or the attorney signing and dating the LPA form.
What to watch out for
If you or your attorney goes bankrupt, this revokes a property and affairs LPA; bankruptcy doesn’t affect a personal welfare LPA however. As long as you have mental capacity, you can cancel your LPA. Disputes about whether your LPA has been cancelled are decided by the Court of Protection.
Solicitor’s top tip
Lasting Powers of Attorney were introduced in October 2007 under the Mental Capacity Act to replace Enduring Powers of Attorney (EPA). You can’t make changes to an existing EPA or make a new one but existing ones can still be used and registered if required. If you have an unregistered EPA and are still able to make decisions for yourself, you can create a personal welfare LPA to run alongside it. You can also replace an unregistered EPA with a property and affairs LPA. As long as you have metal capacity, you can revoke an unregistered EPA using a Deed of Revocation (a solicitor can help you with this); registered EPAs can only be revoked with the Court of Protection’s permission though.
The Office of the Public Guardian
Lasting power of attorney forms
How to get access to and manage the estate of a deceased loved one
I need help with an elderly relative
Changing or cancelling a will
What documents do I need when meeting a lawyer?
Writing a will
Do I need a lawyer? (personal)