The laws surrounding Lasting Powers of Attorney

Popular culture, film and TV are full of false information about the documents themselves and many clients, in my experience, have heard conflicting stories from secondary sources that muddy the waters further.

I frequently answer questions about LPAs, so I thought it would be beneficial to outline how they interact with the law and address other common queries that clients often have.

If you’d like to discuss LPAs with a member of the team, please feel free to get in touch!

What is an LPA?

Essentially, an LPA is a legal document that allows you to appoint one or more people to help you make decisions or to make decisions on your behalf if you become unable to do so yourself.

There are two types of LPA:

• Health and Welfare LPA
• Property and Financial Affairs LPA

As their names suggest, the first covers decisions about medical care and living arrangements whilst the second involves managing finances, property, and other assets.

Why set up an LPA?

Setting up LPAs ensures that your wishes are followed if you become unable to make decisions, providing peace of mind for you and your loved ones.

Legally, they grant your appointed attorney(s) the authority to manage your affairs without the need for Court intervention, which can be time-consuming, costly and might be rejected.

An LPA allows you to choose trusted individuals to act on your behalf, rather than having the Court of Protection appoint someone.

It also helps you avoid potential family disputes by clearly outlining your preferences and granting legal authority to your chosen attorneys.

When do LPAs come into effect?

LPAs come into effect depending on the type and the stipulations within the document.

For a Health and Welfare LPA, it only becomes effective when the individual loses mental capacity, as determined by a healthcare professional using the criteria set out in the Mental Capacity Act 2005.

Under the Act:

• You are presumed capable unless proven otherwise.
• You have the right to make unwise or eccentric decisions.
• All practicable steps must be taken to help you make your own decisions before concluding you lack capacity.
• Any decision made or action taken on behalf of someone who lacks capacity must be in their best interests.
• Any intervention should be the least restrictive of the person’s rights and freedoms.

In contrast, a Property and Financial Affairs LPA can be used as soon as it is registered, with the individual’s permission, or it can be deferred until they lack mental capacity.

Mental capacity assessments consider whether the person can understand, retain, weigh up information, and communicate their decisions, ensuring decisions made on their behalf reflect their best interests and previously expressed wishes.

What makes an LPA legally binding?

To make an LPA legally binding, it must be signed by the person making it (the donor) and their chosen attorneys in the presence of a witness.

A certificate provider, who can confirm that the donor understands the implications of the LPA and is not under undue pressure, must also sign the document.

Your solicitor can act as a certificate provider where there is no doubt of your mental capacity.

However, in uncertain cases, this may be referred to a medical professional.

The LPA must then be registered with the Office of the Public Guardian, which involves completing the appropriate forms and paying the necessary fees.

Unless you qualify for reduced fees, the application costs £82 per LPA – so that’s £164 to register for both a health and financial LPA.

How to set up an LPA

Setting up a Lasting Power of Attorney (LPA) involves several steps, and using a solicitor is far more secure and straightforward.

1. Choose trusted individuals as your attorneys.
2. Complete the LPA forms, providing detailed information about yourself and your attorneys.
3. Both you and your attorneys must sign the forms in the presence of witnesses.
4. A certificate provider must confirm your understanding and freedom from duress.
5. Submit the forms to the Office of the Public Guardian and pay the registration fee.

Your solicitor will ensure that all the forms are correctly completed, reducing the risk of errors and delays.

We will also provide honest, personalised advice, help you navigate legal complexities, and ensure all the relevant requirements are met.

The legal assistance you’ll get from a solicitor also offers peace of mind and helps to prevent future disputes.

Start your LPA today by contacting one of our Private Client team.