What are lasting powers of attorney and why make them?

Monday 2nd March 2020

What is a power of attorney?

Lasting Power of Attorney is a legal document that allows you (the donor) to appoint people you trust (your attorneys) to make decisions for you if are unable to make these decisions yourself.

What is mental capacity?

Mental capacity is the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision that needs to be made, why you need to make the decision and the likely outcome of making the decision. Some individuals are able to make certain types of decision but not others and their ability to make decisions may vary from day to day. If an individual needs more time or longer to make a decision this does not mean they do not have mental capacity and every step must be taken to assist the person to make a decision for themselves in the least restrictive way.  Memory loss is not always an indication that someone has lost mental capacity.

Who can act as my LPA?

You are able to choose anyone to act as an attorney as long as they are 18 years of age or over. You can have as many attorneys as you want but it is usual to have between one and four and if more than one attorney is appointed you are able to specify how and when they can make decisions. The attorney should be someone who knows you well, who you trust to make decisions for you and is reliable.  It may be useful to take into account how they manage their own affairs and make decisions for themselves. The attorneys would usually be a family member but can be a professional attorney such as a solicitor or accountant. You should also consider appointing someone who is younger than you and discuss with them that you are considering appointing them as attorneys so they are aware of any specific wishes you have.  This is so they can consider whether or not they feel they would be able to undertake the role as an attorney.

How do I set up a power of attorney?

A Lasting Power of Attorney can be instructed through a solicitor or you could set them up yourself by contacting the Office of the Public Guardian and downloading the forms or completing them online, although seeking professional advice can prevent problems later on especially if you are unsure of the process or your affairs are complex. The documents need to be registered with the Office of the Public Guardian before they can be used at a cost of £82 per document which can be reduced by half if you are on a low income or there may be no fee payable at all if you are in receipt of certain types of benefits. The Lasting Power of Attorney needs to be signed by a certificate provider who confirms that you understand the effect of the documents and have not been put under pressure to sign the documents. The certificate provider must be someone you know well in a personal capacity or it can be a professional person such as a solicitor, doctor or a social worker.

How long does a lasting power of attorney last?

As soon as the Lasting Power of Attorney is registered it lasts until as long as it is needed or until the document is revoked by the donor if they have mental capacity to do so.  When the donor dies, the Lasting Powers of Attorney are revoked automatically and should be sent to the Office of the Public Guardian to be removed from the register.

How much does sit cost to set up a lasting power of attorney?

The cost for setting up a Lasting Power of Attorney depends on whether you instruct one or both documents. If one document is instructed through Waldrons the cost is £550.00 plus VAT or if both documents i.e. property and financial affairs and health and welfare are required, the cost is £750.00 plus.  The maximum registration fee of £82 is payable per document.  If you were to set up the Lasting Power of Attorney yourself the only fee would be the registration fee of £82 per document plus the fee for the certificate provider, if a professional person is used.

Do I need a Solicitor?

You do not need a solicitor to put Lasting Powers of Attorney in place as the forms can be downloaded from the Office of the Public Guardian website or completed online but seeking professional advice can prevent future problems from arising.

How do I make change to my lasting power of attorney?

You cannot make changes to the Lasting Power of Attorney once it is registered as it is a Deed. If changes needed to be made the registered document would have to be revoked and a new Lasting Power of Attorney set up in its place.

What if I’m having problems with my attorney?

There are a number of ways you can raise concerns or make a complaint if you are having problems with your attorney. You can raise your concerns with the Office of the Public Guardian who are responsible for monitoring the attorneys and have the powers to investigate allegations of mistreatment or fraud. The Office of the Public Guardian can also report concerns to other departments such as the police or social services, if appropriate.