Planning for the future can seem like a daunting task, but it’s vitally important to make sure that you have someone you trust to look after your affairs if you are unable to do so yourself.
A lasting power of attorney can help with this—it allows you (the donor) to appoint one or more people (known as attorneys) to help you make decisions or make decisions for you in the future.
Choosing someone you trust to look after your affairs in the future can give you peace of mind and it can be done at the same time as making your will.
Who can make a lasting power of attorney?
You must have the ability to make your own decisions when you make the lasting power of attorney.
This means that you must understand the decision you need to make, why you need to make it and the likely outcome of your decision.
You must also be over 18 years old.
Who should I choose to be my attorney?
Your attorney will have an important responsibility to you, so you must make sure they are happy to fulfil their role. Make sure to choose someone you trust to act in your best interests, should the time come when you cannot.
They must also be aged over 18, have the mental capacity to take decisions and not be bankrupt.
A lasting power of attorney can appoint more than one attorney and the attorneys may be required to make some or all decisions together, instead of independently. A probate solicitor can help you decide how decisions should be made and to outline the extent of each attorney’s authority.
What can the lasting power attorney cover?
There are two types of lasting power of attorney: a health and welfare power of attorney, and a property and financial affairs power of attorney. You can choose to make either or both.
A health and welfare lasting power of attorney will give your chosen attorney/attorneys the power to make decisions about things like:
- Moving into a care home
- Medical care and life-sustaining treatment
- Your daily routine
- Refusing certain medical treatments
Importantly, this type of lasting power of attorney can only be used when you lack the mental capacity to make your own decisions.
A property and financial affairs power of attorney will give your chosen attorney/attorneys the power to make decisions about things like:
- Managing a bank or building society account
- Collecting a pension and benefits
- Paying bills, such as utility bills
- Selling your house
With your permission, this type of lasting power of attorney can be used as soon as it’s registered, with your permission.
If you decide to set up this type of lasting power of attorney, your attorney must keep financial accounts and ensure that their money is kept separate from yours.
To give you peace of mind, you can ask for regular updates on how much money has been spent and what remains. If you lose capacity, these details can be sent to your solicitor or a family member.
You can allow your attorneys to make all decisions on your behalf or you can restrict the types of decisions they can make. A solicitor experienced in probate law will be able to address any concerns you may have.
What if I decide not to create a lasting power of attorney?
Without a lasting power of attorney, there is no one with the legal authority to manage your affairs if you were to lose capacity.
You might think that your spouse, partner or children would be automatically able to make decisions about your healthcare, and deal with your bank account if you are unable to do so.
But, without a lasting power of attorney, they will not have the authority to do so and making decisions on your behalf can become a long and expensive process.
For someone to obtain legal authority over your affairs without a lasting power of attorney, they will need to apply to the Court of Protection. The Court will decide on the person to be appointed (called a deputy).
It’s impossible to set up a lasting power of attorney for someone who does not have the mental capacity, which is why it’s important to think about your future now and before any issues arise affecting your mental capacity. Without a lasting power of attorney in place, family members will need to apply to be appointed as deputies.
How do I register a lasting power of attorney?
You can seek advice on lasting power of attorneys from the Office of the Public Guardian, where your application for a lasting power must be submitted.
First of all, choose your attorney or attorneys and ensure that they are willing and able to fulfil the role.
You can request the lasting power of attorney forms from the Office of the Public Guardian, or fill them in online.
You can fill the forms in yourself but you may prefer to have the forms prepared by a solicitor. This can prevent mistakes which could cause the application to be rejected, but you should factor in the cost of having a solicitor prepare them.
You’ll also need a certificate provide to sign your application. The certificate provider, who must someone you know well or a professional person such as a solicitor or doctor, will confirm that you understand the decision to make a lasting power of attorney and that you haven’t been pressured into doing so.
In the application, you’ll be asked to identify people who should know that you are planning to register a lasting power of attorney. A probate solicitor can help you identify who may need to be told.
If you think someone should know about your plans, make sure you send them a notification form (LP3). They then have three weeks to raise any concerns with the Office.
However, you are under no obligation to name anyone in this section. Your relatives don’t have a right to be informed of the lasting power of attorney unless you name them.
Your application must then be sent to the Office, along with a fee of £82 to register the lasting power of attorney. It will cost £164 to register both a lasting power of attorney for property and financial affairs and a lasting power of attorney for health and welfare.
You may be entitled to a fee reduction or exemption, for example if you’re on a low income or receive income-related benefits.
The application process can take up 10 weeks. Once approved, the Office will send back a stamped copy of the lasting power of attorney. It’s important to keep this document safe.
In the future, if you’d like to make any changes to your lasting power of attorney they must be made through the Office.
What if my lasting power of attorney was filled in incorrectly?
If the application for a lasting power of attorney is incorrect, it will be rejected.
If you are concerned that you may have trouble filling in the forms correctly, you should seek the advice of a solicitor who can help you complete the application.
What if I’m unhappy with my attorney?
If, during the time your legal power of attorney is in force, you have any concerns about your attorney or you’re unhappy with the decisions being taken, you should raise them with authorities.
You can raise your concerns with the Office. The Office has responsibility for monitoring attorneys and deputies and is able to investigate allegations of mistreatment or fraud. It can also report concerns to other agencies, including the police or social services, if necessary.
If you want to raise a healthcare complaint, you should contact your local NHS Complaints Advocacy service, which can support you when making a formal complaint. You should contact the local social services to raise a social care complaint.
If you think you’re in immediate danger, contact your local police.
The Court of Protection can remove your attorney for failing to act in your best interests, fraud, dishonesty, or because they are unable to act as your attorney.
Can I cancel my lasting power of attorney?
Yes, as long as you (the donor) still has mental capacity, you can end the lasting power of attorney at any time.
You’ll need to send the Office the original lasting power of attorney and a written statement called a deed of revocation.
If you divorce or end your civil partnership with your attorney, then your lasting power of attorney may end. This can also happen where your attorney loses the ability to make decisions on your behalf, dies, becomes bankrupt or is removed from the position by the Court of Protection.
The lasting power of attorney can continue if there are other attorneys who can act ‘jointly and severally’ (but not if the attorneys can only act together) or there are replacement attorneys.
You should seek a probate solicitor who can help you create your lasting power of attorney as part of your planning for the future.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
