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What Is A Lasting Power Of Attorney?
January 2021

What is an LPA?

A Lasting Power of Attorney is a form which you can complete to allow one or more people (your attorneys) to make decisions on your behalf.

There are two different types of LPA, one dealing with property and finances and the other dealing with health and care matters.

What is a Property and Finances LPA?

This type of LPA allows your attorneys to make decisions about things like your bank accounts, investments and property. It would allow your attorneys to buy and sell investments on your behalf, open and close bank accounts and pay bills.

Your attorneys could make decisions for you if you were unable to make them for yourself because of something like illness or injury. Your attorneys could also deal with your affairs for you if it was simply more convenient; if for example you were abroad for an extended period or could not leave home.

What is a Health and Welfare LPA?

This type of LPA allows your attorneys to make decisions about things like medical treatment, care provision and where you live. It can also give your attorneys power to make decisions about life sustaining treatment if you specifically agree to it in advance.

Your attorneys can only make decisions on your behalf using this type of LPA if you are unable to those decisions for yourself.

Who can make an LPA?

Anyone who over 18 and who understands what they are signing.

Who can be my attorneys?

You can appoint almost anyone as attorney. The only real restrictions are that you attorney must be over 18, must be mentally capable themselves and must not be bankrupt or insolvent.

You should however give careful thought to who you appoint and ensure that they are trustworthy and will act in your best interests at all times. Most people appoint close family or friends.

It is possible to appoint a professional such as a solicitor or accountant as attorney but this would be unusual and would incur additional cost should they need to deal with your affairs. It would also normally only be appropriate for a Property and Finances LPA.

How many attorneys can I have?

In theory there is no limit to the number of attorneys you could appoint and you could even have more than one LPA appointing different people. This would not normally be practical and we would usually recommend appointing no more than four attorneys.

On the other hand it is usually a good idea to appoint at least two attorneys so that one of them can continue dealing with your affairs if the other cannot for any reason.

If I have more than one attorney how do they make decisions?

If you appoint more than one attorney, you need to decide how they can make decisions. There are three options:

Joint and several

Each of your attorneys may make decisions independently of the others. Your attorneys don’t all have to agree on everything and if any of the attorneys becomes unable or unwilling to act for any reason then the others can continue without them.

This method of appointment provides the most flexibility and is what we would usually recommend.

Joint

All of your attorneys must agree about all decisions.

This method of appointment provides the most security but at the expense of more administration. It also means that if any of your attorneys becomes unable or unwilling to act for any reason then the others cannot continue without them.

Despite the greater security, the increased administration required and the risk of the LPA failing because of one attorney not acting means we would not usually recommend this option.

A Combination

You can specify that your attorneys may make certain decisions independently but must agree on others. You might for example allow any of your attorneys to act independently when paying bills but require them all to agree on selling your house.

This type of appointment can be very difficult to manage in practice and runs the same risks of failing as a joint appointment. We would not usually recommend it.

How do I control my attorneys’ actions?

The best way to protect yourself is simply to ensure that you only appoint attorneys who you can be confident will act in your best interests. It is also helpful to discuss you LPAs with your attorneys to give them guidance about your wishes.

You can always cancel an LPA or overrule your attorneys’ decisions while you have mental capacity to do so.

You are able to include restrictions and conditions on your attorneys’ powers when preparing your LPAs. You do though need to be careful not to be too restrictive as this can defeat the object of having an LPA in the first place.

Beyond that, your attorneys’ powers are governed by law and they are required to act in your best interests at all times. If anyone has concerns about how your attorneys are using their powers they

can ask the Office of the Public Guardian to investigate which could ultimately lead to their removal by the Court of Protection.

What is a Certificate Provider?

This is a person who need to sign your LPAs to confirm that you understand what you are doing when you make them and that you are not under any undue pressure.

This person can be a professional such as a solicitor or doctor or can be someone who has known you for at least two years.

Do I have to tell anyone about my LPA?

You can choose to formally notify people about your LPA when it is registered with the Office of the Public Guardian but do not have to and it would be unusual.

What is registration?

Your LPAs must be registered with the Office of the Public Guardian before your attorneys can use them.

You do not have to register your LPAs as soon as you have made them but we always recommend that you do. The registration process can easily take 2 to 3 months and could cause significant delay if your attorneys only applied for registration when they needed to use the LPAs.

Applying for registration straightaway also means that if any are errors are identified, you can rectify them.

What will Jolliffes do?

We can assist with the whole process including :

· Meeting you to discuss your requirements and advise about LPAs

· Preparing draft LPAs for your approval and making any necessary amendments

· Preparing final LPAs and meeting you to sign them

· Acting as certificate provider

· Sending your LPAs to your attorneys to sign

· Applying to the Office of the Public Guardian for registration of your LPAs

· Storing the registered LPAs for you

What does it cost?

Our charges vary depending on your circumstances and the number of LPAs you need. Please contact us for a personalised estimate.

In addition to our charges, there is currently a registration fee of £82 payable to the Office of the Public Guardian for each LPA you register.

Please contact us on law@jolliffes.com for assistance.

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