What is the difference between ordinary power of attorney and LPA?
A power of attorney is a broad term that refers to the legal authority granted to someone to act on your behalf, typically for financial or legal matters. Ordinary power of attorney can be set up for specific situations, such as managing your affairs while you are abroad, and is temporary. An ordinary or general power of attorney ceases to be valid if you lose mental capacity. In contrast, a lasting power of attorney is designed to continue if you can no longer make your own decisions for yourself. An LPA must be registered with the Office of the Public Guardian to take effect and can be used to address long-term planning needs, covering areas such as property and finances or health and welfare. This distinction makes an LPA particularly well-suited for safeguarding future decision-making when capacity might become an issue.
Why is a lasting power of attorney important?
Life is full of uncertainties, and there may come a time when you need someone you trust to step in and manage your affairs. An LPA offers a practical solution, allowing you to make arrangements in advance so that your affairs can be managed smoothly if you become unable to make decisions for yourself. Without an LPA, your loved ones could face lengthy and complicated legal processes to obtain the authority to act on your behalf, potentially delaying decisions and adding unnecessary strain during an already challenging time.
Stay in control of who manages your affairs
An LPA allows you to decide who will act on your behalf, giving you the freedom to choose individuals you trust, such as family members, friends or professionals. You can also specify how you would like decisions to be made by including instructions or preferences. This means that whether it’s decisions about your finances or your health and welfare, you remain in control of how your affairs are managed, even if you are no longer able to express your wishes directly.
Avoid disputes
Without an LPA in place, disagreements can arise within families about who should make decisions or what actions should be taken. These disputes can create tension and delay important decisions, especially in situations where time is of the essence. An LPA provides clarity and structure as to who can make these decisions on your behalf, reducing the likelihood of conflict.
Plan ahead for peace of mind
Knowing that your preferences are legally documented can bring reassurance not only to you, but also to your loved ones. They will have clear guidance about your wishes, which can help to ease the emotional burden during difficult times. Whether it’s managing financial matters or making decisions about medical treatment and care, an LPA provides a framework that makes things simpler and less stressful for everyone involved.
How can I set up a lasting power of attorney?
Setting up a lasting power of attorney involves a few steps. Here’s an overview:
Decide which type of LPA you need
The first step is to consider which type of LPA suits your needs - the type relevant to health and welfare decisions, or the version covering property and financial affairs. You may choose to set up one or both, depending on your circumstances. For example, if you want to prepare for decisions about medical treatment or living arrangements, a health and welfare LPA might be appropriate. On the other hand, a property and financial affairs LPA can allow someone to manage your finances or property.
Choose your attorneys
These are the people who will act on your behalf, so it’s essential to choose individuals you trust. Attorneys are often family members, close friends or professionals. You can also appoint replacement attorneys, who will step in if your primary choices are unable to act. Discuss the role with your chosen attorneys in advance so they fully understand the responsibilities involved and are comfortable accepting the role.
Complete the forms
The next step is to complete the necessary LPA forms, which can be done online or in paper format. These forms capture all the important details, including the donor (you), the attorneys, and any specific instructions or preferences you wish to include. You can specify how you want decisions to be made and include restrictions or guidance for your attorneys. Completing the forms thoroughly helps reduce the likelihood of errors that could delay registration later.
Certify the forms
Before your LPA can be registered, it needs to be certified by a certificate provider. This is an individual, such as a solicitor or doctor, who confirms that you understand the LPA and are making it voluntarily, without any pressure or undue influence. This step acts as an important safeguard and is required for the LPA to be valid.
Register with the Office of the Public Guardian (OPG)
Once the forms are complete and certified, they need to be submitted to the OPG for registration. The OPG is a government body that protects the interests of vulnerable people, and it keeps a record of all LPAs created. The registration process confirms that the LPA meets all legal requirements and allows the document to be used when needed. Until registration is complete, your attorneys cannot act on your behalf.
Working with a solicitor
While it is possible to create and register an LPA on your own, many people choose to work with a solicitor to guide them through the process. A solicitor such as Walker Foster can provide advice tailored to your situation, help you complete the forms accurately, and address any questions you may have. Their expertise can be particularly helpful if you have complex requirements or want to avoid common mistakes that might cause delays during registration.
How much does power of attorney cost and how long do they take?
Setting up a Lasting Power of Attorney (LPA) involves some costs, but it is an investment in protecting your future decisions and providing clarity for your loved ones. The standard fee charged by the Office of the Public Guardian (OPG) for registering an LPA is £82 per document. If you are creating both a Health and Welfare LPA and a Property and Financial Affairs LPA, the total registration cost will be £164. Some individuals may qualify for exemptions or reductions in the fee, based on their financial circumstances.
If you choose to work with a solicitor, additional fees will apply. These fees reflect the level of tailored advice and professional expertise provided, helping to avoid common mistakes and delays.
At Walker Foster, we take pride in offering a personalised service, ensuring your LPA is carefully prepared to meet your specific needs. Our experienced team can guide you through the process, explaining your options and providing peace of mind that everything has been handled correctly.
The registration process with the OPG can take up to 20 weeks, depending on their workload and whether the forms have been completed accurately. Starting early is always recommended, particularly if you anticipate needing the LPA in place within a specific timeframe. Walker Foster can assist in preparing and submitting your application efficiently, reducing the chances of delays and helping the process run smoothly.
How do you update or revoke an LPA?
Life circumstances change, and your LPA should reflect your current situation. You can update an LPA by revoking the existing document (or part of it) and creating a new one. Revocation involves sending a formal notice to the OPG.
Situations where you might need to update your LPA include:
- A change in relationship with an attorney.
- The death of an attorney.
- New preferences or instructions you wish to include.
Keeping your LPA up to date ensures it remains relevant and effective, but you are only able to make changes if you have mental capacity.
Can you have more than one attorney at once?
Yes, you can appoint more than one attorney when setting up a lasting power of attorney. This allows you to share responsibilities between individuals or create a system of checks and balances. When appointing multiple attorneys, you will need to decide how they should act. They can make decisions:
- Jointly: this means all attorneys must act jointly and agree on every decision. While this approach adds an extra layer of collaboration, it may slow down decision-making in urgent situations.
- Jointly and severally: here, attorneys can act together or independently. This offers flexibility, as any one of your attorneys can make decisions on their own if others are unavailable.
- Jointly for some decisions and severally for others: you can specify that certain decisions, such as selling property, require all attorneys to act together, while day-to-day matters can be handled individually.
Choosing more than one attorney can help distribute the responsibility and reduce the burden on any single person. It’s important to discuss the roles with your chosen attorneys beforehand so they are comfortable with the arrangement and understand how decisions will be managed.
Common myths and misconceptions about LPAs
There are a few misunderstandings about LPAs that can discourage people from taking action. Let’s address some of the most common:
- “I don’t need an LPA because I’m healthy.”
An LPA is not just for those who are unwell or older. Accidents or sudden illnesses can affect anyone, making an LPA a sensible precaution. - “My family can make decisions for me automatically.”
Without an LPA, even close family members must apply to the court to gain decision-making authority, which can be time-consuming and expensive. - “Setting up an LPA is complicated and costly.”
The process is straightforward with the right guidance, and the benefits far outweigh the initial investment of time and money.
What are my responsibilities as an attorney in the UK?
If you have been appointed as an attorney in the UK, you are responsible for acting in the best interests of the donor (the person who appointed you). Your duties will depend on whether you are acting under a Health and Welfare LPA or a Property and Financial Affairs LPA, but general responsibilities include:
- Acting with care and integrity: you must make decisions that benefit the donor and avoid any conflicts of interest. This includes keeping their finances separate from your own and maintaining clear records of any transactions.
- Following the donor’s instructions: if the LPA includes specific instructions or preferences, you are required to follow these as closely as possible. Where no guidance is provided, decisions should be based on what you reasonably believe is best for the donor.
- Making decisions in their best interests: whether managing property, finances or healthcare decisions, your role is to consider what will best meet the donor’s needs and reflect their values. If the donor still has capacity, you should involve them in decisions whenever possible.
- Keeping accurate records: for financial matters, it is important to keep detailed records of income, expenses, and any major decisions. This helps maintain transparency and accountability.
Acting as a power of attorney is a role that comes with a great deal of trust and responsibility. By carefully adhering to your obligations, you can support the donor in managing their affairs while respecting their wishes and safeguarding their interests.
If you have any questions about your responsibilities or need guidance in carrying out your duties, Walker Foster’s experienced solicitors are here to help. We offer practical advice tailored to your circumstances, helping you approach the role with confidence and clarity.
