Lasting powers of attorney
A lasting power of attorney (LPA) is a legal document in which someone (the donor) gives another person (the attorney) the right to help them make decisions, or take decisions on their behalf.
There are two types of LPA, for:
- property and financial affairs, which can be made for both personal and business reasons
- health and welfare
LPAs let the donor choose people to look after their affairs if they:
- lose mental capacity
- develop, or think they may develop, an illness that may stop them making decisions for themselves, for example dementia or a brain injury
The donor can make one or both types of LPA. Donors should make an LPA while they have mental capacity.
LPAs can only be used once registered with the Office of the Public Guardian (OPG). OPG is a government body that:
- keeps a register of LPAs
- investigates complaints against attorneys
LPA for property and financial affairs
This LPA can be used to appoint attorneys to make decisions such as:
- buying and selling property
- operating a bank account
- dealing with tax affairs
- claiming benefits
The donor can decide whether the LPA can be used:
- as soon as it’s registered
- once the donor has lost mental capacity
The LPA can also restrict the decisions an attorney can make.
LPA for health and welfare
An LPA for health and welfare can be used to appoint attorneys to make decisions on, for example:
- where the donor should live
- day-to-day care (for example, diet and dress)
- who the donor should have contact with
- whether to give or refuse consent to medical treatment
The LPA can only be used once the donor has lost mental capacity to make a personal welfare decision for themselves. You should make clear to the donor that the LPA is a powerful document and that before signing it they should speak to:
- any other people they’re considering appointing as their attorney
- their GP, in case they have medical conditions that have influenced the creation of the LPA that may need discussing
- other relevant healthcare professionals
A business owner can make a separate LPA for property and financial affairs to appoint an attorney to make decisions about the business should they lose mental capacity. They can still make an LPA for their personal property and financial affairs.
Read Craig Ward’s article for the Gazette on business LPAs.
Making an LPA
Checking mental capacity
You must be satisfied that the donor has mental capacity to make a PoA. Under the Mental Capacity Act 2005 (MCA 2005) someone is assumed to have mental capacity unless it can be proved otherwise.
When assessing the donor’s mental capacity to make a PoA you must refer to:
You should get specialist medical opinion if you have any doubts about the donor’s mental capacity.
Choosing an attorney
The donor will need to choose at least one attorney. The same attorney can be appointed for both LPAs or someone different can be appointed for each. But it’s sensible to appoint more than one attorney in case one of them cannot act for the donor in the future.
Acting as an attorney under an LPA
An attorney must always act in:
- accordance with the statutory principles of the MCA 2005 (section 1)
- the best interests of the donor (section 4)
This means, when making a decision on behalf of the donor, the attorney must:
- encourage the donor to be part of the decision as much as possible
- consider the donor’s past and present feelings
- talk to people the donor knows who can suggest what might be in the donor’s best interests
Attorneys also have a duty:
- of care
- to carry out the donor’s instructions
- not to delegate authority, unless it’s specified in the PoA
- of confidentiality – unless the donor has agreed that personal information can be disclosed, for example to an accountant, or because it’s in the donor’s best interests
There are also duties to keep:
- records of payments made on behalf of the donor
- the donor’s money and property separate from the attorney’s
There may be times when the attorney(s) acting under an LPA for health and welfare may need to see the donor’s will. This is to understand the donor’s wishes and make sure that they do not sell any assets that the donor has left to someone. The attorney cannot execute the will on the donor’s behalf.
An attorney has limited powers under an LPA to make gifts of the donor’s property or money. Gifts must only be made:
- to people related or known to the donor
- on specific occasions such as birthdays or weddings
- to charities, provided the gifts are in the best interests of the donor and reasonable in their size and the circumstances
Giving gifts: a guide for deputies and attorneys – OPG guidance on making gifts.
Read our practice note on LPAs, paragraph 10.2.
Applying for an LPA
There are separate forms for each type of LPA that must be completed either:
Who should sign it
Whichever way the forms are completed, they must be printed out to be signed by the:
- certificate provider
The certificate provider is an independent person who confirms that the donor:
- understands what they’re doing
- is not under undue pressure or fraud used to induce him or her to make the LPA
They can be either:
- someone who has known the donor for at least two years on a familiar basis, such as a friend or neighbour
- a professional, such as a doctor or solicitor
Regulation 8 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 sets out who’s allowed to be a certificate provider.
The LPA must be signed in the following order:
- certificate provider
Someone must act as a witness when the donor and attorney(s) sign the LPA. They must watch them sign and then sign the form themselves. The donor and attorney(s) must not witness each other signing.
It’s a common mistake for the form to be signed in the wrong order or for signatures to be missing. Read OPG’s guidance on avoiding errors in LPAs.
Before registering the LPA
Before the LPA is registered the donor can notify up to five people:
- that they’re registering an LPA
- of the names of their chosen attorney(s)
This step is optional and up to the donor.
Named persons have three weeks to raise any concerns or objections with OPG and the Court of Protection. This helps to avoid situations where the donor is put under pressure to make the LPA.
Registering the LPA
The LPA can be registered by:
- the donor, if they have mental capacity
- all attorneys, if they’re appointed jointly under the LPA – this means the attorneys must make all decisions together
- any attorney, if there’s only one attorney appointed, or several attorneys appointed jointly and severally – this means that any one of the attorneys can make a decision
It costs £82 to register a single LPA. OPG takes up to 10 weeks to process an application, if:
- it contains no mistakes
- no one’s objected to the LPA
It’s a good idea to register the LPA as soon as possible, so there are no delays if it needs to be used straight away.
Power of attorney fee refund scheme
The Ministry of Justice has launched a scheme to refund those who may have paid more than they should for applying to register powers of attorney.
If you applied to register an LPA with OPG between 1 April 2013 and 31 March 2017 and paid an application fee, you could be due a partial refund.
Changing the LPA
The donor cannot make changes to an LPA after it’s registered. If they want to add another attorney, they must cancel the LPA and make a new one.
If they have mental capacity, the donor can remove an attorney by sending OPG:
- a partial deed of revocation
- the original LPA
The donor must send the attorney a copy of the partial deed of revocation.
Cancelling the LPA
The donor can cancel their LPA if they have mental capacity. They must prepare and sign a deed of revocation in front of a witness who must also sign it. They must send to OPG the:
- deed of revocation
- original LPA
When the donor dies
The LPA ends automatically when the donor dies. The attorneys can no longer act or make decisions under the LPA. The attorney(s) must notify OPG of the death and send:
- the original LPA and all certified copies
- a copy of the death certificate
An LPA can also come to an end if:
- the donor or an attorney becomes bankrupt
- an attorney loses mental capacity or dies
- there is a dissolution or annulment of the marriage or civil partnership between the donor and the attorney
- an attorney decides they no longer want to act for the donor – they must complete form LPA005 and send it to the donor, OPG and any other attorneys
Make and register your lasting power of attorney: a guide – in-depth OPG guidance.
Mental Capacity Act 2005 Code of Practice – see paragraphs 7.21 to 7.39 for guidance on LPAs.
LPA fees: exemption or remission – apply for financial help with paying LPA fees.