What is a Lasting Power of Attorney?

A Lasting Power of Attorney (“LPA”) is a document that can be prepared and signed by the person creating it (the “Donor”) naming or more people to look after their affairs (the “Attorneys”) should they become unwell.

What are the different types of LPA?

There are two types of LPA as follows: –

Lasting Powers of Attorney Solicitor Essex (Property/Financial Affairs)

This allows you to name Attorneys who can look after your money, bills, investments, pensions, etc. Pretty much anything you can do with your own finances an Attorney can do on your behalf if they are appointed in the right way. It is possible to restrict what your Attorneys can do by drafting the document in a particular way.

Lasting Power of Attorney SOLICITOR ESSEX (Health/Welfare)

This document allows you again name one or more people to be your Attorneys in relation to important decisions that might have to be made about your health to include where you might live, care packages, medical procedures and even life-sustaining treatment.

When do these LPAs come into affect?

Neither document can be used, in practice, unless they have been registered with the Office of the Public Guardian (“OPG”). It is usual when having LPAs prepared to carry out a registration application with the OPG thereafter.

The difficulty with leaving documents and registered is that the registration procedure takes around three months to complete, and if this needs to be undertaken in an emergency, then there will be a considerable delay before any access to the Donor’s funds can be obtained.

With a Lasting Power of Attorney (Property/Financial Affairs), this can be used after registration and while the Donor still has mental capacity they are very much in charge of what the Attorneys can and can’t do. If the Donor became unwell, but still retained for mental capacity, they could give their Attorneys instructions on what they wanted them to do on their behalf. If the Donor lost mental capacity, the Attorneys would assume for responsibility for the Donor’s finances.

With a Lasting Power of Attorney (Health/Welfare) things are slightly different in that the Attorneys do not have any authority to act on behalf of the Donor, unless the Donor has lost mental capacity. The government effectively take the view that while the Donor is capable of making decisions about their own body, they should be the only person that does make those decisions and that the attorneys will be only be act on their behalf if they lose mental capacity.

Who might a Donor consider appoining as their Attorneys?

The Donor must decide who they want to appoint as their Attorney or Attorneys. Choices of attorneys are usually made from close family members like spouses/civil partners and any children or other close relatives.

How can multiple Attorneys be appointed?

When a Donor is appointing more than one Attorney they need to decide whether they wish to appoint, perhaps an initial Attorney or Attorneys and then to have some “back up” replacement Attorney or Attorneys. The alternative would be to appoint numerous Attorneys immediately.

It is possible to appoint Attorneys, jointly or jointly and severally and the distinction is as follows:

• A joint appointment is where all Attorneys have to act simultaneously and unanimously. This can be inconvenient if Attorneys are not able to act together at the same time and this type of appointment would make the document of no further use should one of the Attorneys die or lose mental capacity.
• A joint and several appointment is much more flexible in that any of the Attorneys who are appointed can act on behalf of the Donor, and they do not have to act together. In addition, if one of the Attorneys dies, the document will continue in relation to the surviving Attorney, who is still capable of acting.

What are common alternative types of appointment when appointing more than one attorney?

With simple family set ups Donors may wish to appoint a combination of their spouse/civil partner an children. Simple alternatives for this may be as follows: –

• The Donor might choose to appoint their spouse or civil partner as their sole Attorney, and then have their children appointed as their replacement Attorneys.
• Alternatively, another common appointment that I often see is where Donors will appoint each other and their children immediately as their Attorneys, jointly and severally.

What is a certificate provider and what do they do?

There is a section of the LPA that must be completed by your certificate provider, indicating that they feel the Donor has sufficient mental capacity to sign the document and no one is placing them under any pressure to do so. The certificate provider must be a professional like a Solicitor or soemone the Donor has know personally for at lest is two years who is able to attest to the above.

What is the procedure involved to complete an LPA and have it registered with the OPG?

Generally, when I prepare LPAs, I will see clients and take their instructions, providing them with any advice they might need on what will be involved. I will take full details of their family structure and individuals they might want to appoint as their Attorneys.

I will then prepare draft LPAs for the cleitns to approve. These are fairly lengthy documents running to a number of pages. After the documents have been approved, I would then arrange for the documents to be signed. They do have to be signed in a particular order with the Donor signing first, their certificate provider signing next and then the Attorneys signing thereafter. Finally, the Donor must sign in section 15, in order to make the application to have the document registered. All of the signatures must be given in date order or on the same date and if any of them are in the wrong order, the OPG will reject the application being made.

After the documents have been signed by all parties, they are sent to the OPG to be registered which takes around three months to conclude. Once they have been registered, they are returned normally to the solicitor acting, and they will then be ready to use in the future, should the need ever arise.

What fees do the OPG charge?

The OPG charge a fee of £82 to register each LPA. Although it is a slightly antiquated way of doing it, it is normally best to settle this by way of a cheque being written out in favour of the OPG.

Once the documents have been registered, how can they be activated with individual organisations?

You would only generally look to activate an LPA with a bank other other type of organisation if there was an immediate need to activate it on behalf of the Donor.

Different banks/investment organisations have different procedures for activating documents with them. Normally high street banks will want the Attorneys to complete a specific form and supply ID before they are able to provide any access to the Donor’s accounts and investments.