How to set up a Lasting Power of Attorney
22 March 2019
We explain what a Lasting Power of Attorney is, how it works, and provide a three step guide to getting one put in place.
How Does a Lasting Power of Attorney Work?
A Lasting Power of Attorney is a legal document in which you can appoint one or more people that you trust to act as your 'attorney.' This means that they will have legal authority to make important decisions on your behalf, if you become unable to make these decisions for yourself.
Types of Lasting Power of Attorney
There are two types of Lasting Power of Attorney (LPA) available in England and Wales. The first is called a Health and Welfare LPA and the second is called a Property and Financial Affairs LPA. It's possible to just set up one of these types, or to set up both types.
As the name suggests, a Health and Welfare LPA covers things such as medical treatment, healthcare and your general welfare. Your attorney may need to make decisions such as whether you should be cared for in a care home or in your own home, and whether you should receive certain medical treatment.
With a Health and Welfare LPA your attorney would only be able to make decisions if you lose the capacity to make or express these decisions for yourself.
A Property and Financial Affairs LPA covers all of your financial matters, which includes any money, property, shares or other assets that you own in England or Wales. Your attorney would have legal authority to access your bank accounts, manage your money and sell your property, for example. It's important to note that a Lasting Power of Attorney that has been made in England or Wales may not cover any foreign property or other money or assets that are held abroad.
Unlike a Health and Welfare LPA, you can choose when you would like your attorney to make decisions for you with a Property and Financial Affairs LPA. This can either be at the point of making it, or at some point in the future. This means that if you have mobility issues, for example, or are living outside the country, then someone you trust can step in and manage your financial affairs for you. Alternatively, you can choose for your attorneys to only be able to make decisions if and when you lose the capacity to make these decisions yourself.
How to Set Up a Lasting Power of Attorney
Step 1 – Don't wait until it's too late
The first point that it is important to note is that only you can set up your LPA, no one can do this on your behalf. Furthermore, you can only make your LPA while you still have capacity to fully understand what you are doing and its implications. This means that if you wait until you need it, you've waiting too long.
If you do wait until it's too late, your loved ones would be faced with the time consuming and expensive task of applying for a Deputyship Order through the Courts instead.
Step 2 – Choose your attorney
Think carefully about who you would like to appoint as your attorney. This is a big decision which should be taken very seriously. This should be someone you trust, who is capable of stepping in and taking control of your affairs when you need them to. This should also be someone who you expect to remain in your life for a long time to come, such as a spouse, close family member or close friend.
You can appoint more than one attorney to act together if you wish, and you also have the option of appointing replacement attorneys to step in and act if your first attorney is unable or unwilling to do so. You may want to have a discussion with your chosen attorney before drafting your LPA so that you can speak to them about what the role entails and check that they are happy to take this on.
In addition to choosing your attorney, you also need to choose someone to act as your Certificate Provider. This person will need to sign your LPA to confirm that you understand its implications, that you aren't being coerced into making it and that you're acting under your own free will. This could be someone such as a friend, neighbour or medical professional, but it needs to be someone who has known you for at least two years.
Step 3 – Get your LPA drafted
The next step is to get your LPA drafted. We would always recommend instructing a professional to draft your LPA for you, rather than attempting to complete this yourself. A Lasting Power of Attorney, like a Will, is an important legal document and it's vital that you fully understand your options and that you're making informed decisions to get it right for your circumstances. A poorly drafted LPA could be found invalid or ineffective at the point that it's needed, meaning that you would be in the same position as you would have been if you never made one.
Step 4 – Register your LPA
Once your LPA has been drafted and signed by you, your certificate provider and your attorneys, it then needs to be registered with the Office of the Public Guardian (OPG). There is normally a separate court registration fee payable of £82 for each LPA that is registered with them (a fee remission is available if you're in receipt of certain state benefits or receiving less than £12,000 income per annum). Once your LPA has been registered, it will be activated and ready to be used when needed.
By instructing a professional to draft and register your LPA for you, you'll have peace of mind that your LPA is fit for purpose and can be called upon if and when the need arises. At Co-op Legal Services, our Will Writing team can provide advice and guidance about making an LPA, as well as drafting and registering your Lasting Power of Attorney for you for a fixed fee. We are authorised and regulated by the Solicitors Regulation Authority.