A Lasting Power of Attorney or an LPA is a legal document that allows you to appoint a person who you trust to act on your behalf, this person will then have authority over your property and financial and/ or health and welfare affairs in the event of your incapacity.
There are two types of LPA:-
- Property and Affairs LPA: A Property and Affairs LPA allows you to appoint someone to make decisions on the way your property and affairs are managed and how your money should be spent.
- Personal Welfare LPA: A Personal Welfare LPA allows you to choose someone to make decisions about your healthcare and welfare. This can include decisions to refuse or consent to treatment on your behalf and deciding where you live.
In both cases, these decisions can only be taken on your behalf when the LPA is registered and you lack the capacity to make the decisions yourself.
Who can be an Attorney?
An LPA is a very powerful document and so care should be taken to ensure that you choose somebody you trust. You need to be sure that your attorney will make decisions which are in your best interests. You can appoint a family member, friend or anyone willing to act so long as they are over 18. You could also appoint a professional person.
If you choose more than one attorney they can be appointed to act together (both attorneys to sign everything) or together and independently (either attorney to sign). You can also appoint a replacement attorney who can step in should your original attorney become incapable of acting.
Existing Enduring Power of Attorney
The Lasting Power of Attorney replaced the Enduring Power of Attorney (EPA) on 1 October 2007. A person given power under an EPA before 1 October 2007 can still use it and apply to have it registered. This person has a duty to apply to register the EPA as soon as they believe that you are becoming or have become mentally incapable of making financial decisions for yourself.
How Do I Cancel an LPA or EPA?
- Lasting Power of Attorney (LPA): You can cancel your LPA only if you have the mental capacity to do so. If there is a dispute about whether your LPA has been cancelled, the Court of Protection has the authority to make the decision.
- Enduring Power of Attorney (EPA): You can cancel an unregistered EPA if you have the mental capacity to do so, without applying to the Court of Protection. To cancel a registered EPA you must show the Court of Protection that you understand who the attorney is and what powers they have, that you understand the effect of the cancellation and why the EPA needs to be cancelled.
LPA’s and EPA’s can both be revoked if you or your attorney becomes bankrupt. This excludes Personal Welfare LPA’s.
Do I need a solicitor to make an LPA?
It is not mandatory that you have to have a solicitor to make a Lasting Powers of Attorney. However, the forms are quite complicated to fill in, and it is easy to get them wrong. If you do, the form may be invalid and you will have to start the procedure of completing them all over again. If this happens, you may find the donor has lost capacity by the time the error comes to light. In that case the LPA can no longer be made and you would then have to apply to the Court of Protection for a deputy to be appointed. This is a much more costly and time consuming process.
Making a Lasting Power of Attorney with a solicitor is not expensive and can save time and money in the long run. If you feel that you would benfefit from making an LPA, please contact us using the details provided.
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