Lasting Powers of Attorney Solicitors

An LPA is a document that allows you to appoint one or more individuals to make decisions on your behalf concerning your property & affairs and/or your personal welfare.

By making an LPA, you are making provision for your affairs to be continually managed if you no longer wish to continue taking an active part in such decisions or you are no longer able to do by reason of mental incapacity.

All LPAs must be registered with the Office of the Public Guardian in London before use following a set procedure.

You can apply for a Lasting Power of Attorney at any time. To do so, you can make an application to the Office of the Public Guardian, which can be done online through the Government website.

Anyone can make and register an LPA, so long as they:

• Are 18 or over
• Have sufficient mental capacity when making the LPA

You do not need to live or be a British citizen in the UK.

Currently, 46 million people worldwide live with dementia, which is expected to rise to over 131 million by 2050. Approximately 145,000 adults have severe learning difficulties, and 1.2 million have mild to moderate disabilities. A further 1% of the population will suffer from schizophrenia at one stage in their lives, 1% will be subject to manic depression, and 5% will have severe or clinical depression. In addition, many people will suffer from severe brain injury.

Viewed in the context of such statistics, everybody must cater to a time when they might not be able to manage their affairs as they do now. This can apply as much to the young as to the old.

If you can no longer manage your affairs and lose mental capacity, your assets will be frozen until an individual or individuals are appointed with sufficient authority to deal with such assets. This will involve an application to the Court of Protection in the absence of an LPA.

LPAs were introduced with effect from the 1st of October 2007 following the enactment of the Mental Capacity Act 2005. They replaced Enduring Powers of Attorney to remedy some of the defects within the old system, as it was felt that they were too easily abused. The new LPAs are designed to be more robust and have more significant safeguards than their predecessor.

The Mental Capacity Act 2005 ("the Act") was introduced to ensure that vulnerable adults and those without capacity were given as much assistance as possible in making as many decisions as they could on their own. Under the previous system, you were either deemed to have capacity or not to have it. This meant that you could take all of your decisions or you could take none.

The Act recognises that a person's ability to make decisions can fluctuate depending upon the time of day or the subject matter of the decision. The Act now recognises just because an individual may not be able to evaluate the best place to invest their money, it doesn't necessarily mean they cannot decide to withdraw £20 to go shopping.

The Act confirms five principles that must be adhered to when an attorney (or another authorised individual) decides on behalf of someone lacking capacity. These principles are:

1. Presumption of Capacity – All adults have the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
2. The right for individuals to be supported to make their own decisions – People must be given all appropriate help before anyone concludes that they cannot make decisions. This may mean ensuring that they are in comfortable surroundings, recognising that they may be better able to make decisions in the mornings than afternoons, etc.
3. Individuals retain the right to make what may seem eccentric or unwise decisions.
4. All decisions must be made in the best interests of the individual.
5. Least restrictive intervention – Anything done for or on behalf of people without capacity should be the least restrictive action concerning their basic rights and freedoms.

The two types are health and care decisions and financial decisions, and you can choose to create either or both of these LPAs.

This covers all decisions concerning your health and social care. It can only be used when a person has lost capacity and cannot give instructions regarding these areas:

• Where an individual might live
• Day-to-day care
• Consent to medical treatment
• Arrangements for medical treatment to be provided
• Arrangements for assessments – Concerning nursing services, for example
• The refusal of or consent to life-sustaining treatment

This covers all decisions about the management of finances. Individuals can also authorise attorneys to make decisions on their behalf even if they still have capacity (if it's more convenient.) It includes the following areas:

• Arrangements for investments
• Withdrawals of cash
• Payment of bills
• Sales of property

Your attorneys cannot deal with the following:

• Consent to marriage or a civil partnership
• Consent to sexual intercourse
• Consent to divorce following a two-year separation 
• Consent to the dissolution of a civil partnership
• Placement for a child up for adoption
• Discharge parental responsibilities
• Voting in Elections

Choose only people you feel you can trust 100%. They can be friends or family. You may select to appoint a professional such as an accountant or a solicitor, although they will expressly reserve the right to charge for the work they complete on your behalf.

However, it is not an easy job, and the person you wish to appoint must be trustworthy, organised, and meticulous in their finances. The trust extends not only to honesty and integrity but also there must be trust in the attorney's good judgment. 

There is much to consider when a decision is made under an LPA. Your attorneys must be familiar with the LPA itself and the principles of the Act as set out above. They should be aware of the Mental Capacity Code of Practice which explains in greater detail the rights of incapacitated individuals and what attorneys must do to protect them. 

Any deviation from the Code must be explained to the Court if required. This is more strictly applied to professional attorneys but can be used to lay attorneys at the Court's discretion.

A witness to an LPA must be anyone aged 18 or older and who is not a named attorney or replacement attorney.

The attorney's signature must also be witnessed by someone aged 18 or over but cannot be the donor (the person the LPA is for). Attorneys can witness each other's signature, and your certificate provider can be a witness for the donor and attorneys.

Signatures must be done in person.

There are various options:

Solely – This is where you only choose to appoint one individual. They have sole responsibility for making decisions on your behalf and are accountable to no other attorney. This may be problematic if your attorney dies or becomes incapacitated, as you have only chosen to appoint one. However, this can be remedied by appointing a replacement attorney(s).

Jointly – in this case, you appoint two or more attorneys jointly. This means they must make all decisions together and sign all cheques and other documentation. This is good for accountability as no one attorney can act without the knowledge of the others. However, it can be impractical if an attorney is out of the country on holiday, for example, as nothing can be done in their absence. Further, if one of the attorneys dies or becomes incapacitated, the entire document fails, and you must either make another document or rely on the appointment of your replacement attorney(s).

Jointly and independently – you can appoint two or more attorneys jointly or independently. This means they can act together as outlined above, or they can act independently. This means if one is on holiday, the remaining attorney(s) may still make decisions. This is less accountable than a joint appointment but more pragmatic. If one attorney dies or becomes incapacitated, the remaining attorney(s) can continue to act without recourse to the appointment of any replacement attorneys.

Mixture of Jointly and Jointly and Independently – This means you can have some decisions made jointly and some, perhaps less important ones, on a joint and independent basis. For example, you may decide that selling a property is a joint decision but paying the nursing home fees is a joint and independent decision. If you opt for this, you must clearly state what decisions are joint and what decisions are joint and independent. In the event of ambiguity, the Court will have to resolve.

You should draft an LPA that will be suitable for all eventualities. Consequently, the appointment of at least one replacement attorney is advisable.

As part of the registration process, you may specify specific individuals to be notified of the intention to register your LPA. You can choose any friends or family that your wish.

This is an additional layer of protection as these individuals may wish to object to the registration on your behalf. For example, if they think the attorneys will not act in your best interests, they may alert the Court to these concerns. The Court can then investigate and will only proceed with the registration once it is satisfied that the objection raised is unfounded.

To remedy some of the previous abuses that took place under the old Enduring Powers of Attorney system, it is necessary to have each LPA endorsed with a Certificate confirming that you were not pressured to create the document. It also ensures you understand its nature and significance and appreciate what your attorneys are allowing to decide on your behalf.

This can be completed by someone who has known you for more than two years or by a professional such as a solicitor. The certificate provider must ensure you understand and are happy to create the LPA. If an allegation was ever raised saying you did not have sufficient capacity to make the document, they may have to provide evidence to the Court. They would need to prove that you did have the capacity to sign the document.

It is, therefore, an important role and should be taken seriously.

There are various categories of individuals who are prohibited from being certificate providers. These include anyone related to the attorney or employed by them and the manager of a Care Home.

All LPAs must be registered before they are used. There is a set procedure and a court fee, which is currently £82 per LPA being registered.

By immediate registration, the LPA is ready to be used at a moment's notice. This may be required if someone suddenly loses their mental capacity. There is no need to wait 8-10 weeks to register the document, which may not be advisable when a sudden loss of capacity occurs. 

There is also no scope for maintaining the donor (discharging bills from their funds, for example) during the registration period as under the law relating to Enduring Powers of Attorney. You may therefore have to make an urgent application to the Court for an interim order to obtain immediate access to money if required, which may have an adverse effect on administration and cost.

You may never need to use the document, so the professional costs and court fees incurred could have been saved. You may also change your mind as to who you wish to act. An unregistered LPA is far easier to change than a registered LPA, which will involve the centrally maintained register at the Office of the Public Guardian being updated.

You may only want the document to be used in the event of mental incapacity. Consequently, if it's only registered at that point, it might be easier for the asset holders to determine who has the correct authority to complete the transaction.

However, this fits poorly with the 'floating capacity' test, which confirms that for every decision, you must be assumed to have capacity and encouraged to make that decision. Only when it is clear that you cannot, can your attorneys make the decision for you (provided that it is in your best interests).

In this scenario, the asset holders will likely still require contemporaneous medical evidence of incapacity. For example, a letter from the GP that is updated on a sporadic basis, so the banks are satisfied they are dealing with an authorised attorney.

Yes, you may revoke it at any time that you have capacity to do so. If the LPA is unregistered, you must inform your attorneys of your actions.

If the LPA is registered, you must complete a form to alert the Office of the Public Guardian so that they can amend the central register accordingly.

There are several circumstances:

• An LPA concerning Property & Affairs is automatically revoked if an attorney becomes bankrupt
• An Attorney can disclaim, which confirms they do not wish to act. If the LPA is unregistered, they must inform you and the donor of their decision. The Office of the Public Guardian must be notified if the LPA is registered.
• If an attorney dies and there is no one to replace them.
• If you have appointed your spouse/ civil partner and subsequently divorce/separate, the appointment is revoked. As outlined above, this would be fatal in the case of a sole or joint appointment, so it would be prudent to appoint more than just a spouse / civil partner. We also recommend ensuring that any appointment is either on a joint and independent basis or there is an appointed replacement attorney.

The need for registration before use confirms who is entitled to act. The Office of the Public Guardian will maintain a central register to verify the existence and details of registered LPAs. This register will be searchable and can confirm who is authorised to act on behalf of a particular individual can be obtained.

Two new criminal offenses under the Act have been introduced:

(a) Ill-treatment;

(b) Wilful neglect of a person who lacks capacity. A person found guilty of such an offense may be liable for imprisonment for up to five years.

It must be resolved as quickly as possible, as no decision can be used in the event of a dispute. You should only seek to appoint people who will work well in a team to ensure such conflicts do not arise.

If they do have a dispute, the attorneys may have to make the following applications:

• Declaration – apply to Court for a declaration as to whether (a) a person lacks the necessary capacity to make this decision or (b) whether an act that is intended is lawful. This step would be taken where there is a severe dispute between professionals over an individual's capacity to make a particular decision or where a broader range of disputes is involved.
• Single Orders- you can apply to the Court for a particular decision, for example, whether a partnership agreement of which the individual is a member should be dissolved. However, any such application will incur an application fee.

Current guidelines advise that it takes up to 20 weeks to register an LPA if everything runs smoothly in the application.

• Based on your instructions, our costs range from £600 + VAT for a single person or £700 + VAT for a couple per Lasting Power of Attorney. If you instruct us to complete both types of LPA on your behalf, the costs incurred will range from £850 plus VAT for a single person to £1,100 plus VAT per couple. This ensures you receive all the information required to create a fully workable LPA.
• The Court Fee for the registration of the LPA is £82.00. This is subject to available exemptions and remissions in some instances. 
• We must also run a bankruptcy search at £2.40 per each appointed attorney, as you are prevented from acting under an LPA concerning Property & Financial Affairs if you are bankrupt. 

Our costs consider the time we will take to explain the document's implications and review all the information you need before completing the Power of Attorney. It is a serious personal matter and not just a process. We will provide you with a high level of bespoke advice for establishing and creating an LPA. We will also provide information on the duties and obligations that your attorneys are under to assist you in making decisions in the future.

It is a complicated area but one that is prudent to consider while you are mentally fit and to ensure that you will always have someone who can assist you in making decisions as required in the future.

In addition, once the document has been registered with the Office of the Public Guardian as required, we are happy to store your registered documents in our strongroom, currently free of charge. 

As part of our ongoing commitment to ensure that you and your attorneys are fully advised, we also complete an activation process if you or your attorneys need to use the registered LPAs. This involves a meeting with a member of our Team where you are reminded of what was agreed when your LPAs were initially completed. Your instructions are then sought as to whether you are happy for your attorneys to now act for you in your future affairs. If approved, we will arrange for certified copies to be provided to your attorneys, and we will advise them of the steps they are now required to take to assist you. The cost for this is £300 plus VAT, totalling £360.00, which includes the advice and the provision and certification of up to 5 certified copies.