Introduction:

What you’ll learn in this guide:

This guide is designed for the person with no prior experience or knowledge of Lasting Power of Attorneys – LPAs. It aims to give you an understanding of:

• What an LPA is
• What an LPA does
• The two types of LPAs
• Common misconceptions about LPAs
• Risks of LPAs
• Choosing your Attorneys
• Making an LPA
• DIY v. Professionally Drafted

What is an LPA?

A Power of Attorney is very simply a document in which you give someone the right to do something which you can normally do for yourself.

A Lasting Power of Attorney is a power of attorney that is intended to continue even if you lose the ability to make decisions for yourself.

The Two Types of LPA

1: Lasting Power of Attorney for Property and Financial Affairs:

Appoints Attorney(s) to handle only your financial affairs. The powers are only used if and when necessary or required by you. eg: Your Attorney could access your bank account to pay bills on your behalf if you were unable to.

2: Lasting Power of Attorney for Health and Welfare:

Allows Attorney(s) to make decisions on your behalf about medical treatment and care but only when you cannot do so for yourself. eg: Your Attorney could make decisions about what medical treatments you receive.

You can have either or both Powers of Attorney in place.

Applications made for LPAs in Dec 2019 alone*

* Source – www.gov.uk January 2020

1: Property & Financial Affairs LPAs

What does it do?

The Lasting Power of Attorney (LPA) Property and Financial Affairs allows someone who you name and trust to help you with matters such as, for example:

• Your savings and bank accounts;
• Your pension;
• Utility providers;
• House sales and purchases
• General financial matters.

To increase your understanding of what an LPA can and can’t do, It’s worth noting some misconceptions and questions people commonly have about Lasting Powers of Attorney for Property and Financial Affairs…

“Do I really need it – I’m fully ‘with it’ and anyway, wouldn’t my relatives be able to do these things for me?”

An LPA for financial matters can be used even when you have full mental capacity – but only if you want it to be. So it may be that, for example, you might be going on holiday and need something doing whilst you are away. Sometimes however, people just want some help – have you ever for example wanted someone to speak to an organisation for you only to find that they can’t because of data protection? Lodging an LPA with them (with your consent) would let your Attorneys communicate with them on your behalf.

Obviously if you do lose the ability to deal with things yourself then an LPA will allow your Attorneys to step into your shoes financially, and act on your behalf. It’s always best to prepare an LPA when you don’t need it rather than when you think you might need it, as it may then be too late!

“Well, I only have joint accounts, so if I lose capacity my partner can just carry on…”

Maybe. Maybe not. Banks are generally required to ‘freeze’ joint accounts if one of the holders has lost capacity. If that person had an LPA appointing another person, then that should avoid any problems occurring.

 “What do I need to decide on before making a Lasting Power of Attorney for Property and Financial Affairs?”

You will need to decide on who you want to appoint to help you (these will then be your Attorneys). They can be anybody you like – it does not have to be a family member.  Under some circumstances it might be appropriate to have a professional Attorney, such as a Solicitor or Accountant, but bear in mind that they will charge for any work they then do.

You can have just one person, but it is usually a good idea to have at least two people in case one of them is ill or can’t act. If you do have more than one Attorney, you have to decide whether you want to appoint ‘jointly’ or ‘jointly and severally’ – that just means you need to decide whether both have to sign everything or if just one person can.  If appointed ‘jointly and severally’ it would also mean that if one Attorney was unable to act, the other(s) can carry on. You can set out in the paperwork some guidance and instructions on what to do in some situations, but you can just leave it up to your Attorneys. For more information on choosing Attorneys see Page 13.

“What do you have to do to make a Lasting Power of Attorney for Property and Financial Affairs?”

The form is basically in three parts:

1) The first part sets out who you are and who you want to help you. You can also say if you want anyone to be told you are registering the papers with the Court.

2) The second part is for someone to confirm that you know what you are doing. This can be a Doctor, a friend or even us (in some circumstances).

3) The final part is for your Attorneys to sign.  The papers then have to be registered with the Court.

2: Health & Welfare LPAs

Many people have heard of a Power of Attorney for dealing with your money or your house, but what about your health and your wellbeing?

“What does a Health & Welfare LPA do?”

The Lasting Power of Attorney for Health and Welfare allows someone who you name and trust to make decisions for you IF you are not able to do so for yourselves on matters such as:

• Where you might live;
• What you might wear;
• Who comes to see you;
• What you might eat;
• What medicines you have;

It also allows someone named and appointed by you, if you choose to do so, to give Doctors consent if you want to withdraw or withhold life sustaining treatment.  This would include for example:

• Withdrawing food;
• Withdrawing life sustaining drugs;
• Turning off life-support.

 “Do I really need it – wouldn’t my relatives or friends do this anyway?”

It is important to remember that by creating a Lasting Power of Attorney for Health and Welfare you make sure that someone you trust makes perhaps some of the most important decisions that will ever need to be made about you.  Just because you might be married, have a partner (civil or otherwise) or have children does not mean that they would automatically have the right to make those decisions.

“What do I need to decide on before making a Lasting Power of Attorney for Health and Welfare?”

You will need to decide on who you want to appoint to help you (these will then be your Attorneys).  They can be anybody you like – it does not have to be a family member.  You can have just one person, but it is usually a good idea to have at least two people (for the same reason as in LPAs for Property and Financial Affairs).

If you have more than one, you have to decide whether you want to appoint jointly or jointly and severally – that just means you need to decide whether both have to sign everything or if just one person can. Again, bear in mind that if you appoint ‘jointly and severally’, the LPA would not end if one Attorney could not continue, whereas it would end if appointed jointly. You can set out in the paperwork some guidance on what to do in some situations, but you can just leave it up to your Attorneys.

Perhaps the most important thing to decide is whether you want the people you name to be able to give consent to life-sustaining treatment.

“What do you have to do to make a Lasting Power of Attorney for Health and Welfare?”

Just like a Property & Financial Affairs LPA, the papers are basically in three parts:

1) The first part sets out who you are and who you want to help you. You can also say if you want anyone to be told you are registering the papers with the Court.

2) The second part is for someone to confirm that you know what you are doing. This can be a Doctor, a friend or even us.

3) The final part is for your Attorneys to sign. The papers then have to be registered with the Court.

Risks of LPAs

It’s natural to have reservations about LPAs – Appointing someone else to make decisions on your behalf needs to be given careful consideration…

LPAs were introduced in October 2007 (replacing Enduring Powers of Attorney), so they are tried and tested. Some of the changes that were brought in with LPAs aim specifically to increase safeguards against abuse under an LPA.

The two principal risks of LPAs are:

• Abuse by your Attorneys
• Your Attorneys making a mistake

Safeguards:

You can appoint one or two (or more) Attorneys and specify whether they can act individually or jointly. Having more than one Attorney could help to reduce risk.

When making your LPA you can also create supervisory conditions to hold Attorneys accountable. For example you could create supervisory conditions stipulating that your Attorneys must provide financial records or seek professional advice. It is important, however, to ensure you do not unnecessarily limit the Attorney’s authority, as they may have to deal with things you could not have foreseen.

You can also name up to five people to be informed when an application is made to register the LPA – those named people can object to the registration on certain specified grounds.

When you make your LPA you need it to be signed by a ‘certificate provider’ – someone who can confirm your identity, and confirm that you understand the LPA and have mental capacity to make an LPA.

If you are using a lawyer to prepare your LPA they can advise on risk mitigation for your individual circumstances. One common approach is to notify other family members of the existence of the power, who the Attorneys are etc.

If you suspect abuse under an LPA you should call the Office Of The Public Guardian helpline on 01159 342 777.

Choosing your Attorney & Professional Attorneys

Clearly it is important to choose your Attorneys carefully. They need to be the right character type but also need to have the skills and knowledge necessary for the role.

You can choose anyone over the age of 18 to be your Attorney e.g. a spouse, friend or relative or a professional as long as they are not bankrupt or in an arrangement with creditors arranged through a court. Many people decide to have more than one Attorney – to spread the burden and reduce risk of mistakes. You can decide if Attorneys can act ‘jointly’ or ‘jointly and severally’ (see earlier notes). The Attorneys naturally have to be informed and consent to acting.

You should consider not just the Attorney’s character but also their availability and capacity for performing the role. They also need to know you well enough to make decisions on your behalf.

Attorneys’ responsibilities include:

• A duty of care – to act in good faith
• To carry out the donor’s instructions
• Not delegate unless authorised to do so
• Maintaining confidentiality
• Complying with directions of the Court of Protection
• Not to disclaim without notifying the donor, other Attorneys and the Public Guardian
• Not taking advantage of their position
• Keeping the donor’s money and property separate from their own
• Keeping accounts and meeting certain standards of care and skill

If you don’t have a suitable Attorney you can appoint a lawyer or other professional person such as a chartered accountant to act as a professional Attorney. You may simply prefer a professional Attorney for personal reasons. The professional Attorney performs the same role but may be more accustomed or better equipped to act than a family member or friend. In addition to having to comply with everything an attorney has to comply with, there is the additional comfort of knowing that they have very strict professional regulations dealing with how they act. Professional Attorneys do however have to charge for acting.

DIY v Professional LPAs

It is possible to make your own LPA – The process is the same whether you do it yourself or use a solicitor or lawyer.

The steps, in brief, are:
1) Choose your Attorneys,
2) Fill in the forms (notify people if you have chosen to do so) and
3) Register your LPA with the Office of the Public Guardian.

DIY LPA:

To make your own LPA you will need to complete the forms online at gov.uk or download a paper form (when you complete the forms online you will still need to print them out to sign).When completing forms online you can create an account and get help and guidance, save your forms to come back to them later and review and correct your forms.

Costs The only costs you will incur are those to register the LPA with the Office of The Public Guardian, currently £82 per LPA – thus if you make LPAs for Health and Welfare and Property and Financial Affairs the fee would be £164. If you make a mistake you will have to pay a fee of £41 to re-register.

If you are adept at paperwork and have the time and energy, making your own LPA can save money. Alternatively you can instruct a solicitor to do it for you.

Benefits of professional LPAs:

The most valuable benefit of using a lawyer to make your LPA is access to their experience. If you choose a lawyer who specialises in LPAs they will have a wealth of knowledge that can’t easily be gained yourself. They may recommend a special clause to be inserted in the LPA.

 There’s also the peace of mind that comes from professional advice and thorough investigation of your unique circumstances. They will be able to translate legal jargon into plain English – ensuring you understand all the legal implications of making your LPA. The solicitor will do the hard work of contacting Attorneys, form filling and submission etc. For many people the seriousness of making an LPA informs their decision to use a lawyer.

Why use Thorne Segar?

Thorne Segar Solicitors’ LPA Services

If you do decide to instruct a Solicitor to make your LPAs for you it makes sense to choose a firm with experienced specialists…

Thorne Segar Solicitors are a long established firm in Minehead, Somerset. They are private client solicitors with lawyers specialising in LPAs, Wills, Probate and Court of Protection matters. Their service includes:

✓ Free initial consultations

✓ Discounts for two LPAs and couples

✓ Deal with a Director of the firm

✓ Free home visits in local area

✓ 100% Satisfaction Guarantee

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