Lasting Power of Attorney
Encyclopedia
Lasting powers of attorney (LPAs) in England and Wales were created under the Mental Capacity Act 2005
of which copies are available online, and came into effect on 1 October 2007. The LPA
replaced the former Enduring Powers of Attorney
(EPA) which were narrower in scope. Their purpose is to meet the needs of those who can see a time ahead when they will not be able – in the words of the Act, will lack capacity
– to look after their own personal and financial affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf.
which is widely used in countries which have a common law
system. The word attorney
in this context is someone (or in some circumstances an organisation such as a company) legally appointed or empowered to act for another person. The person giving the power is known as the donor. The word 'lasting' in the context of an LPA means that the power may continue even if the person (though still alive) no longer has capacity
to exercise the power.
The former EPA
was simple to administer, but failed to provide for some decisions which may have to be made in circumstances that preclude their being made by the person principally affected. In particular, the attorney's powers under the EPA were largely defined in terms of money and property, and were not related to decisions on medical matters such as the continuation or otherwise of life-sustaining treatment, or welfare matters such as a move to a different kind of accommodation. The primary purpose of the changes under MCA 2005
was to rectify this omission, by creating two LPas: one for property and financial affairs (the LPA(PFA)) and one for Health and Welfare (the LPA(H&W)). The opportunity was also taken to make further changes, whose principal effect was to make the whole apparatus very much more complex, and correspondingly more expensive to administer.
(OPG), an agency of the Ministry of Justice
of the United Kingdom. Its contact details are explained in section 2.2 below headed 'The role of the OPG in relation to Lasting Powers of Attorney'. The OPG
was set up in 2007 under the Mental Capacity Act 2005
, replacing the similarly-named Public Guardianship Office which had a more limited range of responsibilities. It is headed by the Public Guardian, whose main role is the protection of people who lack mental capacity
.
MCA 2005
provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes clear who can take decisions on their behalf, in which situations, and how they should do so. Through the LPA, the Act enables people to plan ahead for a time when they may lose capacity. Detailed guidance is provided by a Code of Practice
to the Act, which people working as professionals in this field are required to 'have regard to': that is, to observe, unless (having decided in specific circumstances not to do so) they are prepared to explain afterwards – most probably in a post-incident inquiry – why not.
Where there are suspicions that an attorney might not be acting in the best interests of the donor, the OPG
will arrange an investigation. If the OPG decides that formal action is required, and more generally if any disputes arise on subjects covered by the MCA, the matter is referred to the Court of Protection
(CoP), which is part of the Family Division of the High Court
and was set up under the MCA for this purpose. The role of the CoP in decision-making is complementary to that of the OPG in relation to matters of regulation and supervision.
, which indicate how the term 'capacity'
(implying in this context mental capacity) is to be interpreted:
The test so defined is 'decision-specific'. It can indicate an answer to the question 'Can he any longer use a gas ring safely when unsupervised?', but does not allow for wider questions to be given a firm yes/no answer when the real answer is that he has restricted capacity and so can deal with some aspects but not others. As stated in an official summary of the Act, it is 'a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time'.
should be the first point of contact. Its two key booklets are entitled 'Guidance for people who want to make a lasting power of attorney for…', respectively, 'Property and Financial Affairs' and 'Health and Welfare'. These booklets provide all the information required about the legal aspects of the LPA application procedure, and many but not all of the practical aspects as well; they are the source for the great majority of the material which follows here.
The booklets can be obtained in several ways:
Most users, particularly when completing an application form without previous experience of LPAs, will find the printed format an advantage.
As well as obtaining copies of the forms in these ways, copies may be downloaded or requested of other booklets and the corresponding application forms, such as those relating to registration and the payment of fees. Full information is on the appropriate website; first-time users will find it most convenient either to download or request by post a full set, covering everything needed for each LPA.
The OPG also has a telephone helpline: 0300 456 0300. It does not have its own website, but uses part of the main Government information site. For contact by post, the address is as above.
The booklet describing the registration procedure is the subject of a separate section below. A fee is payable at the time of registration: it is currently £120, or £240 for both LPAs, but exemption or reduction is allowed in defined cases.
will indicate that completion of the forms is a complex process which has to be carried out fully and precisely. Professional help may be thought desirable, but is labour-intensive and therefore expensive. At the very least, some assistance from a person experienced in this kind of work, who is willing to spend much time working on the various tasks involved, should be regarded as essential.
It should also be noted that the detailed information provided by the OPG goes well beyond what can be included in any general introduction, whether this one or those made available online by charities such as Age UK and by others.
All involved, either as donor or as friend or close family member, should also recognise that an LPA is not only a legal document: it is a plan of action, to be put into effect in an ordinary family situation which may have its share of stresses and problems. Any such matters will affect the outcome, and so need to be taken into account in the drafting of the application. The primary source of help and advice for this process is the appropriate OPG booklet, but what the booklet fails to supply – advice on allowing for the human element – will, for most families, prove in the long run to be a factor of equal importance. It needs much thought and discussion.
You, as the donor, must first choose at least one attorney, who will be the person to be given the power to deal with your financial matters through an LPA(PFA), or the same in respect of health and welfare matters through an LPA(H&W). There may be more than one for each LPA, and the same person may be an attorney in both. Additionally, you may wish – particularly if there is to be only one attorney for an LPA – to appoint one or more replacement attorneys, who will act if necessary, for example if the sole attorney dies.
If you decide to have more than one attorney, the LPA form requires you to specify how they are to work together. By way of illustration, suppose that funds are required to pay for something, so that the sale of an asset is needed – but the two attorneys are unable to agree which of two possible items (a family heirloom or some shares) is to be sold. If you have specified that the attorneys are to act jointly, nothing can be done unless the disagreement is resolved. If you have specified that they may act independently, either one can sell his or her preferred asset, which in a sense resolves the difficulty but in doing so creates another.
These two methods (or a mix of both, which might appear an acceptable compromise but in practice is not) are the choices allowed in the application. They are described in legal terms as 'joint' (meaning that they must make all decisions together) and 'joint and several' (meaning that each can act independently). When decisions such as in the example above are needed, neither method allows an acceptable solution, and there is no satisfactory way out of the dilemma which is foolproof and workable, and, most importantly, is sufficiently flexible to allow for situations not envisaged at the time the LPA was drafted. But if you specify 'jointly', you are implying that you don't trust your attorneys to work together, which is not a good starting point.
A special provision of the LPA – indeed, a key feature, though not one whose merits are widely emphasised – may be used to resolve the difficulty. It only works if you specify the 'joint and several' basis of working, so making clear to your attorneys that you are giving them your trust. A section of the application form then allows you to include Guidance to my attorneys. No donor will know, at the time of signature, what needs may arise after the LPA comes into operation, and this section may be used to explain to your attorneys how they are to approach their task. This 'guidance' is not legally binding: it is not a set of instructions, to be followed by your attorneys even in unforeseen circumstances which made them inappropriate. But its flexibility and its power should not be left unused, and time spent on careful drafting may prove well spent.
At a later stage, you will also need a certificate provider (or you may have two), who will sign your application to confirm that everything has been done correctly: that, for example, you have not been subjected to improper pressures at any point. He or she can either be someone who has known you for at least two years, or be someone who has relevant skill or knowledge to be able to form a professional judgement about your understanding. The booklet gives example questions which the donor may be asked, and so the test is a fairly stringent one.
Unless you have a second certificate provider, you will also need at least one other person (a person to be told), who is to be contacted during the registration procedure and may object to the registration itself. This is said to be a 'safeguard': however, its immediate effect will be to create a lengthy delay, and if upheld the objection may leave the donor without any LPA at all. If any objection seems a possibility, it would be far preferable to try to resolve it amicably before the forms are prepared.
In addition, each signature on the application will require a witness.
There are small differences between the powers given to the LPA(PFA) attorney and the LPA(H&W) attorney, which are detailed in 'Additional guidance for attorneys' sections of the two booklets. These will not often affect ordinary operation of the LPAs, but may be referred to if problems arise.
. You can then continue as in the past, until your attorneys decide, on the criteria which the five rules
provide, that it would be right for them to take over.
The LPA(PFA) has one section which is not in the other, which allows you to appoint a trust corporation such as a bank as your attorney: this is likely to require professional advice.
The provisions of this section are similar in some respects to those of an advance health care directive or 'living will'. A prospective donor who has one, or is considering whether to have one, should seek advice, since a statement within an LPA takes legal priority over statements (oral as well as written) made elsewhere.
This LPA comes into operation as soon as it is registered, and there is no facility for delay as there is for the LPA(PFA). But, as the OPG booklet makes clear, 'your attorneys can only make decisions for you when you lack mental capacity
to make the decisions yourself'.
Also, an attorney cannot make or alter a will for the donor, and cannot demand to see a will unless specially authorised by the Court of Protection
. In some circumstances this can be awkward: an attorney may decide, quite properly, to sell an item owned by the donor, without knowing that the item has been left by will to a relative. Should a donor be aware of such a possibility, the attorneys should be warned and appropriate details left with them. Alternatively, the 'Guidance to my attorneys' may include the necessary information.
After the forms are completed and signed, the next stage is the registration of the application with the OPG, which may be carried out either by the donor or by the attorneys. This may follow at once, or be put off until later so that the payment of fees is similarly delayed. But attorneys should note that the registration procedure takes at least three months, and this can create problems – particularly if a drafting mistake is discovered which, if the donor is by that time seriously incapacitated, may be too late to correct. The OPG's clear advice, which is to register the application at once, has good reasons behind it.
During the period before the OPG confirms that the registration has taken place, the LPA has no legal validity, and if a situation arises where urgent action is required the only solution may be to involve the Court of Protection
– which itself of course takes time, as well as requiring professional advice, and so must be considered a last resort.
If there is more than one attorney, or if both LPAs are being registered, this period may be useful to the attorneys in thinking about their actual arrangements for working together. Some tasks, such as weekly shopping and checking on routine medication, will be managed most conveniently by one person, and such matters could well be considered at this time. If the attorneys can see a more major issue ahead – perhaps one that might lead to a change of accommodation, so involving both finance and welfare matters – an opportunity to discuss in advance would be valuable. These are not matters needing general advice, for every family situation is different; but they are topics on which a well-briefed and caring team of attorneys will wish to spend time.
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
of which copies are available online, and came into effect on 1 October 2007. The LPA
Lasting Power of Attorney
Lasting powers of attorney in England and Wales were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney which were narrower in scope...
replaced the former Enduring Powers of Attorney
Enduring power of attorney
An enduring power of attorney under English law is the legal authorization to act on someone else's behalf in a legal or business matter. From 1 October 2007 the EPA has been replaced by the two forms of lasting power of attorney , and no new EPAs can now be drawn up; however, one signed before...
(EPA) which were narrower in scope. Their purpose is to meet the needs of those who can see a time ahead when they will not be able – in the words of the Act, will lack capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
– to look after their own personal and financial affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf.
The purpose of a lasting power of attorney
The LPA is a specific form of the more general power of attorneyPower of attorney
A power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
which is widely used in countries which have a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system. The word attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
in this context is someone (or in some circumstances an organisation such as a company) legally appointed or empowered to act for another person. The person giving the power is known as the donor. The word 'lasting' in the context of an LPA means that the power may continue even if the person (though still alive) no longer has capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
to exercise the power.
The former EPA
Enduring power of attorney
An enduring power of attorney under English law is the legal authorization to act on someone else's behalf in a legal or business matter. From 1 October 2007 the EPA has been replaced by the two forms of lasting power of attorney , and no new EPAs can now be drawn up; however, one signed before...
was simple to administer, but failed to provide for some decisions which may have to be made in circumstances that preclude their being made by the person principally affected. In particular, the attorney's powers under the EPA were largely defined in terms of money and property, and were not related to decisions on medical matters such as the continuation or otherwise of life-sustaining treatment, or welfare matters such as a move to a different kind of accommodation. The primary purpose of the changes under MCA 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
was to rectify this omission, by creating two LPas: one for property and financial affairs (the LPA(PFA)) and one for Health and Welfare (the LPA(H&W)). The opportunity was also taken to make further changes, whose principal effect was to make the whole apparatus very much more complex, and correspondingly more expensive to administer.
The administrative and legal background to the LPA
The LPA system is administered by the Office of the Public GuardianOffice of the Public Guardian
The Office of the Public Guardian in Scotland, is a public body based in Falkirk as part of the Scottish Court Service, established in April 2001 following the passing of the Adults with Incapacity Act 2000.-History:...
(OPG), an agency of the Ministry of Justice
Ministry of Justice (United Kingdom)
The Ministry of Justice is a ministerial department of the UK Government headed by the Secretary of State for Justice and Lord Chancellor, who is responsible for improvements to the justice system so that it better serves the public...
of the United Kingdom. Its contact details are explained in section 2.2 below headed 'The role of the OPG in relation to Lasting Powers of Attorney'. The OPG
Office of the Public Guardian
The Office of the Public Guardian in Scotland, is a public body based in Falkirk as part of the Scottish Court Service, established in April 2001 following the passing of the Adults with Incapacity Act 2000.-History:...
was set up in 2007 under the Mental Capacity Act 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
, replacing the similarly-named Public Guardianship Office which had a more limited range of responsibilities. It is headed by the Public Guardian, whose main role is the protection of people who lack mental capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
.
MCA 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes clear who can take decisions on their behalf, in which situations, and how they should do so. Through the LPA, the Act enables people to plan ahead for a time when they may lose capacity. Detailed guidance is provided by a Code of Practice
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
to the Act, which people working as professionals in this field are required to 'have regard to': that is, to observe, unless (having decided in specific circumstances not to do so) they are prepared to explain afterwards – most probably in a post-incident inquiry – why not.
Where there are suspicions that an attorney might not be acting in the best interests of the donor, the OPG
Office of the Public Guardian
The Office of the Public Guardian in Scotland, is a public body based in Falkirk as part of the Scottish Court Service, established in April 2001 following the passing of the Adults with Incapacity Act 2000.-History:...
will arrange an investigation. If the OPG decides that formal action is required, and more generally if any disputes arise on subjects covered by the MCA, the matter is referred to the Court of Protection
Court of Protection
The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves...
(CoP), which is part of the Family Division of the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
and was set up under the MCA for this purpose. The role of the CoP in decision-making is complementary to that of the OPG in relation to matters of regulation and supervision.
The 'five rules'
The guiding principles of the Act are set out in five rulesMental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
, which indicate how the term 'capacity'
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
(implying in this context mental capacity) is to be interpreted:
- 1. A person must be assumed to have capacity unless it is established that he lacks capacity.
- 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so
:::::have been taken without success.
- 3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made,
:::::in his best interests.
- 5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed
:::::can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The test so defined is 'decision-specific'. It can indicate an answer to the question 'Can he any longer use a gas ring safely when unsupervised?', but does not allow for wider questions to be given a firm yes/no answer when the real answer is that he has restricted capacity and so can deal with some aspects but not others. As stated in an official summary of the Act, it is 'a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time'.
The role of the OPG in relation to lasting powers of attorney
From the point of view of someone who needs (or may perhaps need) one or both LPAs, the Office of the Public GuardianOffice of the Public Guardian
The Office of the Public Guardian in Scotland, is a public body based in Falkirk as part of the Scottish Court Service, established in April 2001 following the passing of the Adults with Incapacity Act 2000.-History:...
should be the first point of contact. Its two key booklets are entitled 'Guidance for people who want to make a lasting power of attorney for…', respectively, 'Property and Financial Affairs' and 'Health and Welfare'. These booklets provide all the information required about the legal aspects of the LPA application procedure, and many but not all of the practical aspects as well; they are the source for the great majority of the material which follows here.
The booklets can be obtained in several ways:
- on line in pdf format http://www.justice.gov.uk/global/forms/opg/index.htm or
- in printed form and free of charge, by request either
- by post from The Office of the Public Guardian, PO box 15118, Birmingham B16 6GX.
Most users, particularly when completing an application form without previous experience of LPAs, will find the printed format an advantage.
As well as obtaining copies of the forms in these ways, copies may be downloaded or requested of other booklets and the corresponding application forms, such as those relating to registration and the payment of fees. Full information is on the appropriate website; first-time users will find it most convenient either to download or request by post a full set, covering everything needed for each LPA.
The OPG also has a telephone helpline: 0300 456 0300. It does not have its own website, but uses part of the main Government information site. For contact by post, the address is as above.
The booklet describing the registration procedure is the subject of a separate section below. A fee is payable at the time of registration: it is currently £120, or £240 for both LPAs, but exemption or reduction is allowed in defined cases.
The application forms for a lasting power of attorney
Even a cursory look through the documentation supplied by the OPGOffice of the Public Guardian
The Office of the Public Guardian in Scotland, is a public body based in Falkirk as part of the Scottish Court Service, established in April 2001 following the passing of the Adults with Incapacity Act 2000.-History:...
will indicate that completion of the forms is a complex process which has to be carried out fully and precisely. Professional help may be thought desirable, but is labour-intensive and therefore expensive. At the very least, some assistance from a person experienced in this kind of work, who is willing to spend much time working on the various tasks involved, should be regarded as essential.
It should also be noted that the detailed information provided by the OPG goes well beyond what can be included in any general introduction, whether this one or those made available online by charities such as Age UK and by others.
All involved, either as donor or as friend or close family member, should also recognise that an LPA is not only a legal document: it is a plan of action, to be put into effect in an ordinary family situation which may have its share of stresses and problems. Any such matters will affect the outcome, and so need to be taken into account in the drafting of the application. The primary source of help and advice for this process is the appropriate OPG booklet, but what the booklet fails to supply – advice on allowing for the human element – will, for most families, prove in the long run to be a factor of equal importance. It needs much thought and discussion.
The features of the two LPAs
The two LPAs have much in common. This section offers a brief overview, based on the application forms and the OPG booklets but noting that the full OPG documentation needs to be used as well, and that discussion with those being asked to play a part in the procedure will be needed at various stages. Although this section is formally addressed to the donor, the drafting process may be supervised by someone else, providing that the outcome reflects the wishes of the donor alone.You, as the donor, must first choose at least one attorney, who will be the person to be given the power to deal with your financial matters through an LPA(PFA), or the same in respect of health and welfare matters through an LPA(H&W). There may be more than one for each LPA, and the same person may be an attorney in both. Additionally, you may wish – particularly if there is to be only one attorney for an LPA – to appoint one or more replacement attorneys, who will act if necessary, for example if the sole attorney dies.
If you decide to have more than one attorney, the LPA form requires you to specify how they are to work together. By way of illustration, suppose that funds are required to pay for something, so that the sale of an asset is needed – but the two attorneys are unable to agree which of two possible items (a family heirloom or some shares) is to be sold. If you have specified that the attorneys are to act jointly, nothing can be done unless the disagreement is resolved. If you have specified that they may act independently, either one can sell his or her preferred asset, which in a sense resolves the difficulty but in doing so creates another.
These two methods (or a mix of both, which might appear an acceptable compromise but in practice is not) are the choices allowed in the application. They are described in legal terms as 'joint' (meaning that they must make all decisions together) and 'joint and several' (meaning that each can act independently). When decisions such as in the example above are needed, neither method allows an acceptable solution, and there is no satisfactory way out of the dilemma which is foolproof and workable, and, most importantly, is sufficiently flexible to allow for situations not envisaged at the time the LPA was drafted. But if you specify 'jointly', you are implying that you don't trust your attorneys to work together, which is not a good starting point.
A special provision of the LPA – indeed, a key feature, though not one whose merits are widely emphasised – may be used to resolve the difficulty. It only works if you specify the 'joint and several' basis of working, so making clear to your attorneys that you are giving them your trust. A section of the application form then allows you to include Guidance to my attorneys. No donor will know, at the time of signature, what needs may arise after the LPA comes into operation, and this section may be used to explain to your attorneys how they are to approach their task. This 'guidance' is not legally binding: it is not a set of instructions, to be followed by your attorneys even in unforeseen circumstances which made them inappropriate. But its flexibility and its power should not be left unused, and time spent on careful drafting may prove well spent.
At a later stage, you will also need a certificate provider (or you may have two), who will sign your application to confirm that everything has been done correctly: that, for example, you have not been subjected to improper pressures at any point. He or she can either be someone who has known you for at least two years, or be someone who has relevant skill or knowledge to be able to form a professional judgement about your understanding. The booklet gives example questions which the donor may be asked, and so the test is a fairly stringent one.
Unless you have a second certificate provider, you will also need at least one other person (a person to be told), who is to be contacted during the registration procedure and may object to the registration itself. This is said to be a 'safeguard': however, its immediate effect will be to create a lengthy delay, and if upheld the objection may leave the donor without any LPA at all. If any objection seems a possibility, it would be far preferable to try to resolve it amicably before the forms are prepared.
In addition, each signature on the application will require a witness.
There are small differences between the powers given to the LPA(PFA) attorney and the LPA(H&W) attorney, which are detailed in 'Additional guidance for attorneys' sections of the two booklets. These will not often affect ordinary operation of the LPAs, but may be referred to if problems arise.
Special features of the Lasting Power of Attorney for property and financial affairs
The two LPAs come into operation in different ways. The LPA(PFA) is legally usable as soon as it is registered, unless you decide otherwise. You may wish to do so, if you want to continue to look after your bank accounts and other savings until such time as you can no longer do so with confidence. You can decide on this by specifying, as a legally-binding restriction, that the legal power is to come into operation only when you lack mental capacityCapacity
Capacity is the ability to hold a fluid, very similar to volume.Capacity may also refer to:* Capacity utilization, in economics, the extent to which an enterprise or a nation actually uses its potential output...
. You can then continue as in the past, until your attorneys decide, on the criteria which the five rules
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
provide, that it would be right for them to take over.
The LPA(PFA) has one section which is not in the other, which allows you to appoint a trust corporation such as a bank as your attorney: this is likely to require professional advice.
Special features of the Lasting Power of Attorney for health and welfare
The application form for the LPA(H&W) has a special section which allows you to give specific authority to your attorneys, either to consent on your behalf to life-sustaining treatment or to refuse to give such consent. The OPG booklet gives examples of the kinds of treatment which might come under this heading. If you decide not to consent, the result will be that the difficult questions, such as whether to turn off a life support mechanism, will be decided by your medical advisers, after consultation with your close relatives.The provisions of this section are similar in some respects to those of an advance health care directive or 'living will'. A prospective donor who has one, or is considering whether to have one, should seek advice, since a statement within an LPA takes legal priority over statements (oral as well as written) made elsewhere.
This LPA comes into operation as soon as it is registered, and there is no facility for delay as there is for the LPA(PFA). But, as the OPG booklet makes clear, 'your attorneys can only make decisions for you when you lack mental capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
to make the decisions yourself'.
Areas which are outside the scope of the two LPAs
There are some matters which neither type of LPA can cover. An attorney cannot vote on the donor's behalf, or make decisions relating to marriage, civil partnership or sexual relationships.Also, an attorney cannot make or alter a will for the donor, and cannot demand to see a will unless specially authorised by the Court of Protection
Court of Protection
The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves...
. In some circumstances this can be awkward: an attorney may decide, quite properly, to sell an item owned by the donor, without knowing that the item has been left by will to a relative. Should a donor be aware of such a possibility, the attorneys should be warned and appropriate details left with them. Alternatively, the 'Guidance to my attorneys' may include the necessary information.
Signing, registration and afterwards
The application form is in three parts, which have to be signed and dated in order. Yours as the donor is Part A; your certificate provider completes and signs Part B; and finally your attorneys and replacement attorneys each sign a Part C. After each signature, no alterations may be made to that section, and so a full check should be made beforehand, preferably with a second check by someone other than the original drafter because even a small error may cause rejection of the entire application. Part A is the critical one, because of its complexity of detail.After the forms are completed and signed, the next stage is the registration of the application with the OPG, which may be carried out either by the donor or by the attorneys. This may follow at once, or be put off until later so that the payment of fees is similarly delayed. But attorneys should note that the registration procedure takes at least three months, and this can create problems – particularly if a drafting mistake is discovered which, if the donor is by that time seriously incapacitated, may be too late to correct. The OPG's clear advice, which is to register the application at once, has good reasons behind it.
During the period before the OPG confirms that the registration has taken place, the LPA has no legal validity, and if a situation arises where urgent action is required the only solution may be to involve the Court of Protection
Court of Protection
The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves...
– which itself of course takes time, as well as requiring professional advice, and so must be considered a last resort.
If there is more than one attorney, or if both LPAs are being registered, this period may be useful to the attorneys in thinking about their actual arrangements for working together. Some tasks, such as weekly shopping and checking on routine medication, will be managed most conveniently by one person, and such matters could well be considered at this time. If the attorneys can see a more major issue ahead – perhaps one that might lead to a change of accommodation, so involving both finance and welfare matters – an opportunity to discuss in advance would be valuable. These are not matters needing general advice, for every family situation is different; but they are topics on which a well-briefed and caring team of attorneys will wish to spend time.