Confused about Lasting Power of Attorney? Here are some of the most common pitfalls and questions…
What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney is a legal document which lets you appoint someone (or multiple people) who you trust to act on your behalf in different areas of your life.
What’s a LPA got to do with dementia?
A Power of Attorney is important for people with dementia because it’s highly likely that someone with the condition will eventually lose the ability to make decisions for themselves. Although the time it takes to reach this point will vary from person to person, unless something happens to them (for example another health problem), we know that they will lose their capacity to make decisions, making it a vital document to set up.
Who should make a LPA?
Anyone over the age of 18 can have a LPA, although it tends to be something that doesn’t get thought about until you’re in the later stages of life. However, it’s actually a good idea to set up a LPA as soon as possible, especially if you have a condition which is likely to cause a loss of mental capacity later on, such as dementia.
In fact, it’s even a good idea for people who do a dangerous job that might cause them to lose mental capacity (for example fireman, construction, tree surgeon), then you should have a LPA ready just in case. This is because they may have an accident at work which could leave them incapacitated (for example, in a coma) and need people to make decisions for them.
Can a married couple have a joint LPA?
No. LPAs are personal to each Donor so you will need to set up your own LPA. However, they can be set up at the same time, and by the same solicitor.
What are the different types of LPA?
Property and Financial Affairs LPA
As the name suggests this type of LPA gives someone the authority to manage your property and money. This could include bank or building society accounts, bills, collecting a pension or benefits and even selling your home.
Health and Welfare LPA
This covers areas surrounding your health and wellbeing, including decisions around your daily care (washing, dressing, eating), medical care and treatment or whether it’s time to move into a care home. It’s sometimes called a Personal Welfare LPA.
How do you make a LPA?
You can choose to make a LPA either with or without a solicitor. Many people choose to use a professional to make sure that everything is filled out correctly, but it’s not a requirement. You can download all the forms for each of the types of LPA online and then fill out and post back to the Office of the Public Guardian.
You can also create a Lasting Power of Attorney through Unforgettable's new service. Click here to find out more.
Who should you pick as an attorney on a LPA?
The attorneys need to be over 18 and not subject to a debt relief order or declared bankrupt. Other than that, it’s up to you. However, you should pick someone who knows you well, is organised and interested in ensuring that your wishes are met, and most importantly, someone who can be trusted. Many people pick their spouse, children or siblings, but you can also pick a professional such as a solicitor or doctor.
How many attorneys can you appoint?
There’s no limit to the number of attorneys you can appoint on a Lasting Power of Attorney. Some people only have one, others have more, but the normal number is three or four.
Can a person refuse to act as an Attorney?
Yes, although it would be better to do this before the LPA is signed and registered. Once it is registered, if the person refuses to act as an Attorney, it is known as ‘revoking’ or ‘disclaiming’ an attorneyship. If the LPA is registered and the attorneys must act jointly (ie all together for all decisions), revoking the attorneyship will invalidate the LPA and a new will have to be made (unless there are replacement attorneys ready to step up). If the attorneys act severally or jointly and severally, then the remaining attorneys can continue to act even if one of them revokes their attorneyship.
What if an attorney dies?
This is similar to the above, that is, if there are replacement attorneys, they can step up to take the place of the attorney who has died. If the attorneys can only act jointly, and there are no replacement attorneys, the LPA will end. A new one can be made if the donor still has mental capacity. If they don’t, a deputyship will need to be set up through the Court of Protection. If you are a replacement attorney and need to step up to be an attorney, you should let the Office of the Public Guardian know that you are now acting as an attorney so the LPA can be updated. You will not be able to act as attorney until this is done.
Can another attorney be added after the LPA has been registered?
No. The only way an attorney could be added is if a new LPA is made and registered, and this can only be done if the donor still has the mental capacity to do so. If this happens, you will need to pay the full fee for the new LPA.
If the LPA is no longer valid can the donor make another?
Only if they still have mental capacity. If they have lost mental capacity since the first Lasting Power of Attorney was made, they will not be able to make another, and a Deputyship or Guardianship will have to be set up instead.
How much is a LPA?
The price varies depending on whether you are setting one up in England and Wales, Scotland or Northern Ireland. In England and Wales, it costs £82, in Scotland it costs £73 and in Northern Ireland it’s £115. These fees refer to each type of LPA, so if you are setting up two types (ie Finance and Property and Health and Welfare), you will need to pay the fee TWICE. This won’t apply in Northern Ireland, where they only have one type of LPA.
Do you need to use a solicitor to fill out a LPA?
No, but many people do, especially if they have complicated assets, or want to ensure that any restrictions or conditions don’t invalidate the LPA.
How long does it take to register a LPA?
This can vary, but generally it takes around eight weeks altogether but can take as long as 10 weeks and sometimes even longer. This also allows for the time needed to allow for the notification of those in the ‘people to be notified’ section. It’s why it’s so important that you don’t delay when submitting the forms.
Can you cancel a Lasting Power of Attorney?
You can cancel a LPA if you’re the donor at any point, so long as you have mental capacity. If the LPA is registered, you will need to write a Deed of Revocation, which essentially revokes the original agreement. Like the original LPA, it will need to be signed, dated and witnessed, and then sent off to the Office of the Public Guardian. You should also alert all of your named attorneys that you are cancelling the LPA.
What happens if there is no LPA registered?
If, for whatever reason, the donor does not manage to set up a Lasting Power of Attorney or does not already have an Enduring Power of Attorney in place, and you need to start managing their finances, property or personal welfare because they have lost mental capacity, you will need to apply to become a Deputy. Deputyship is a decidedly more expensive, long-winded and involved process than a Lasting Power of Attorney.
Need help filling out Lasting Power of Attorney documents? Unforgettable can help! We've created an online questionnaire to help you fill out your LPA and cover off any issues related specifically to dementia and the challenges it can present. Click here for more information.