Frequently Asked Questions
What is a Lasting Power of Attorney (LPA)?
This legal document enables you to nominate a person(s)
to make decisions on your behalf if and when you no longer
have the mental capacity to make decisions for yourself.
LPA's are an extremely useful instrument allowing people to
choose who they wish to deal with their affairs should they
themselves lose the capacity to do so whether this be due to
an accident, poor health or old age.
Who can make a Lasting Power of Attorney?
Anyone who is at least 18 years old and has mental capacity.
What if I decide not to proceed with the lasting power of Attorney?
If you decide not to proceed with the LPA's at this stage you can do so later as long as you still retain Mental Capacity. However, if at a later point you are unable to deal with your own affairs and do not possess the necessary mental capacity then you can not make an LPA.
What happens if I do not have a LPA and then lose mental capacity?
If this were to be the case then a different application to the Court of Protection will need to be made for someone to deal with your affairs. The court will then usually appoint a Deputy.
This process can be very lengthy and costly and we would therefore suggest an LPA should be created and registered with the Office of the Public Guardian at the earliest convenience to avoid the need for the court to appoint a Deputy.
What is the difference between an Ordinary Power of Attorney and a Lasting Power of Attorney?
An ordinary Power of Attorney cannot be exercised once the donor has lost mental capacity.
What does lack of mental capacity mean?
A person lacks capacity in relation to a matter if he or she is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. To pass the test they need to be able to absorb, retain, weigh up information and communicate their decision.
If a person lacks mental capacity they can not make a Lasting Power of Attorney.
What types of LPA are there?
There are two types of Lasting Power of Attorneys, one for Health and Personal Welfare and the other for Property and Financial Affairs. They are both similar documents but obviously relate to different decisions and aspects of the Attorneys duties.
When can the LPA be created?
You may create an LPA at anytime so long as you possess sufficient mental capacity.
What is the Mental Capacity Act?
The Mental Capacity Act (2005) protects people who may not be able to make some decisions for themselves because of, for example:
• Learning disabilities
• Mental health problems
• Stroke or head injuries.
The Act covers people in England and Wales.
It provides a legal basis for how other people can make decisions on their behalf. It allows them to plan in advance for other people to make decisions on their behalf at a point in time when they might lose the capacity to make decisions themselves.
The Act covers decision making about a person’s:
• Property and ﬁnancial affairs
• Health and welfare.
The Code of Practice supports the Act. It gives guidance on people’s roles and responsibilities when making decisions on someone’s behalf.
When can the LPA be registered?
The LPA can be registered immediately with the Office of Public Guardian (OPG) thus giving you peace of mind it is in place for when it is needed. Or it can be delayed and registered when needed at a later date, once you lack capacity, by your chosen attorney.
Can an attorney buy and sell a donor’s property?
If the attorney is appointed under an LPA Property and Financial affairs then they can, subject to any limitation to these powers decided and specified by you in the LPA itself.
Can another attorney be added after the registration of a Lasting Power of Attorney?
No this can not be done. A new LPA will have to be made provided the donor still has mental capacity. You can nominate replacement attorneys in the original LPA to avoid this.
What happens to the Lasting Power of Attorney when the donor dies?
The LPA is automatically terminated. In this event, the original LPA and a death certificate should be sent to the OPG as soon as possible.
Can an attorney write a Will for the donor?
No. if the donor has capacity he or she can do it themselves. If it is not done then arrangements can be made by the court for a statutory will to be drafted by a lawyer.
If two attorneys are appointed and one dies what happens?
If the two attorneys must act jointly, the LPA fails unless there is a replacement attorney to take the place of the deceased attorney.
How many Certificate Providers are required?
One Certificate Provider is sufficient unless there are no persons to be notified, in which case, two Certificate providers are required. We can provide this service.
What happens if my attorney dies?
If you have only one attorney, and you don’t have a replacement attorney, the LPA is invalidated if this happens after registration. If it happens before registration you can make another Lasting Power of Attorney if you still have mental capacity.