Powers of Attorney

Powers of Attorney FAQS

Below, we have answered some frequently asked questions concerning power of attorney solicitors

• What is a Lasting Power of Attorney?

  A Lasting Power of Attorney is a document that appoints someone who can manage your financial and legal affairs if you were to find it difficult or impossible to do so yourself.

  Without an LPA, if you did become incapable of managing your affairs, an application would have to be made to the Court of Protection. This is particularly common where powers of attorney have not been set up as the Data Protection Act prevents banks, insurance companies and other financial institutions from dealing with anyone other than you or your appointed attorney.

  This Court would appoint a Deputy and oversee the Deputy’s management of your financial affairs – but you would have no say in who that Deputy would be. The process would be very time-consuming, inflexible and expensive.

  Check our blog to learn more about setting up an LPA.

• What is mental capacity?

  In general terms, mental capacity is the ability to make decisions for yourself and someone who is not able to do this is deemed to ‘lack capacity’. This might be as a result of an accident, illness, a learning disability, or mental health issues.

• What are the different types of LPA?

  1. A Property and Financial Affairs Lasting Power of Attorney is a document that gives your attorney(s) legal authority to manage your financial and legal affairs on your behalf. This can cover dealing with your property, money in the bank, and investments.
  2. A Health and Welfare Lasting Power of Attorney is a document that gives your attorney(s) legal authority to make decisions in relation to your medical and personal care if you become unable to make these decisions for yourself. It can also include if you wish, power for your attorney(s) to make decisions as to whether or not you should receive life-sustaining treatment.

• Who can I have as my attorney?

  Your attorney(s) must be 18 years or older and must have mental capacity themselves. Your attorney(s) could be:

  • Your spouse or civil partner
  • A family member, such as a parent, sibling, child, or other
  • A trusted friend/colleague
  • A professional financial advisor or solicitor

  If you appoint more than one attorney, you have to specify whether they are to make decisions jointly (together) or jointly and severally (together or separately).

  A person doesn’t necessarily need to reside in the UK or be a British citizen in order to be your attorney.

• Who should I select as my attorney(s)?

  When choosing your attorney(s), it is important to think about:

  • How well they look after their own affairs, e.g. their finances
  • How well you know them
  • If you trust them to make decisions in your best interests
  • Will they be happy in making decisions for you

  Your attorney is required to act in good faith and to make decisions in your best interests.

• When can an attorney act?

  An attorney cannot act on your behalf until your LPA has been registered with the Office of the Public Guardian.

  Once your Property and Financial Affairs LPA has been registered, then – depending on the terms of your LPA – your attorney can act either if you still have the capacity and ask them to act for you or after you have lost capacity.

  Once your Health and Welfare LPA has been registered, your attorney can only act after you have lost capacity.

• Is there a limit to how many attorneys I can have?

  Technically, there is no limit on how many attorneys you can have. That said, it is common for a donor to appoint between one and four attorneys.

  We advise clients not to have too many attorneys, as this can cause problems if too many people are trying to make decisions on your behalf at once.

  On the other hand, it is advisable to not have too few attorneys, as you could find yourself in a position where there is no attorney able to act (e.g. should your appointed attorney die or lose capacity themselves).

• What happens if my attorney dies?

  If your attorney dies and there are no other attorneys or replacement attorneys appointed, then you could if you still had the capacity make a new LPA. If however, you had lost capacity, you would have no attorney and an application would have to be made to the Court of Protection to appoint a Deputy to deal with your financial affairs.

  If your attorney dies and there are other attorneys appointed in your LPA, whether the surviving attorneys can act will depend upon how they were appointed.

  If they were appointed jointly, the surviving attorney(s) cannot act.

  If they were appointed jointly and severally, the surviving attorney(s) can act.

• When should I make LPAs?

  Ideally, LPAs should be put in place as soon as practicable.

  If you were to suddenly lose mental capacity as a result of an accident and do not have LPAs in place, it will be too late and your loved ones will need then to apply through the Court of Protection to become a Deputy, which is a long and expensive process.

  From our experience, no one appreciates the importance of an LPA until they have to deal with the affairs of someone who has lost capacity. We would encourage everyone to create LPAs straight away and then to review these every few years to make sure that they are happy with who they have appointed as their attorney(s).

• How do I make a LPA?

  LPAs can be made online or using paper forms. In either case, you need to get other people (your attorneys, witnesses, and certificate provider) to sign the same original forms. They can’t sign copies of the forms or use digital signatures.

  We would recommend that you use a solicitor to advise you upon your LPA instructions, draw up the documents, arrange for these to be executed by all the necessary parties in accordance with the strict legal requirements, and then register these.

• When should I register my LPAs?

  Your LPAs must be registered with the Office of the Public Guardian in order for your attorney(s) to be able to act for you. It can take up to 20 weeks to register your LPAs and this is assuming that there are no issues with the application submitted.

  We recommend registering LPAs with the Office of the Public Guardian at the same time that they are made so that your attorney(s) can begin making decisions as soon as you need them to.

  If the LPAs are not registered when they are made and you lose capacity, your attorney(s) will have to register these before they can start acting on your behalf.

• How much does it cost to set up a LPA?

  When registering an LPA, there is a registration fee of £82 for each LPA. This means that it costs £164 to register both a Property and Financial Affairs LPA and a Health and Welfare LPA.

  If you are on a low income or receive certain income-related benefits, you may be exempt from paying the LPA registration fee.

  If you instruct a solicitor to put the LPAs in place for you, they will also charge a fee for dealing with this.

• Can a LPA be changed?

  You cannot change your existing LPA once it has been made but, provided you still have the capacity, you can cancel your current LPA and make a new one.

• What happens if I don’t have a LPA in place and I can’t manage my own affairs?

  Without a Property and Financial Affairs LPA, your financial affairs cannot be dealt with until an order has been obtained from the Court of Protection authorising this. It usually takes the Court at least nine months to issue such orders and the application process is often expensive and time-consuming.

  Without a Health and Welfare LPA, decisions regarding your health, care, and medical treatment would be taken by your doctors and social workers on your behalf in what they believe to be your best interests. It’s worth bearing in mind that this, of course, may not reflect what you would have wanted.

• Are Enduring Powers of Attorney (EPAs) still valid?

  Before 1st October 2007, you could make an EPA appoint an attorney(s) to be able to deal with your property and affairs.

  After that date, you would make LPAs.

  Valid EPAs made before 1st October 2007 remain valid but you should be aware that these do not cover health and welfare decisions.

  Further information on EPAs can be found here.