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Put simply, Lasting Power of Attorney (LPA) is a legal document that legally enables one or more individuals (known as the attorneys) to act on someone else’s behalf (known as the donor), should that person lose mental capacity. It is not legal to make decisions/manage affairs on someone’s behalf just because you are a family member or close friend.
There are two legal documents for Power of Attorney in the UK* and you can choose to make one or both:
Both are equally important and must be set up correctly through a professional advisor or solicitor.
Power of Attorney is only valid if the individual giving their consent is still of mental capacity to do so, and in the absence of any pressure to do so.
You will need to decide who you wish to appoint as your Lasting Power of Attorney. You will then need to fill in an online or paper form https://www.gov.uk/power-of-attorney/make-lasting-power before registering them with the Office of the Public Guardian (to link to https://www.gov.uk/power-of-attorney/register , which can be done by the donor or the attorney.
Before you send off the registration, you will need to send an LP3 form to anyone you listed within your form as “People to Notify”, where they will have 3 weeks to register any concerns with the Office of the Public Guardian.
The registration process will take around 20 weeks.
You will require independent witnesses to certify the form’s signatures and many people choose to engage the support of a solicitor or trained professional to complete the process, though this is not a legal requirement.
*Please note, Scotland has differing rules
For some people, it may be that it is a temporary measure while in hospital for an extended period and simply need help with paying bills etc. while you are away. This shorter-term option is known as an Ordinary Power of Attorney.
In other instances, where you fear mental capacity may wane, such as if you have been diagnosed with dementia or Alzheimer’s, then you may need to make longer-term plans for passing over responsibility for decision making, using the Lasting Power of Attorney.
In any instance, it can be an emotional process giving away the power of decision-making, and it is important that all involved are sensitive and preserve any independence possible for the donor.
The charge for each registration with the Office of the Public Guardian is £82 (It is a separate charge for the financial EPA and the health EPA.) Any amends to mistakes on the form are charged at £41 for resubmission if done within 3 months of the initial registration.
Depending if you engage the services of a solicitor or other professional advisor during the process you could typically expect to pay an additional £250 – £400 on top of your registration fees.
You may be entitled to a reduction in registration costs if you receive certain benefits and/or earn less than £12,000 per year.
Although a sensitive subject, it is a conversation that should happen sooner rather than later. An individual is not able to pass Power of Attorney if they lack the mental capacity to do so and it is important not to leave it too late.
Allowing the donor to consider who they would like to put forward is important, so that it does not feel rushed and so that the right person, who will act in their best interests, is selected.
Involving multiple people in the conversation and allowing the donor to have open, non-pressured conversations about their wishes is the best approach.
Although it offers significantly less control over an individual’s affairs and incurs an annual cost, family members and friends who wish to act on behalf of their kin can apply to be appointed as their Deputy via The Court of Protection.
There is no guarantee that Deputyship will be granted – and the fee for Deputyship can run into thousands of pounds per year. But all deputies do have an important role to play.
If a donor still has mental capacity to do so, then they are able to change the Power of Attorney, either to change the person appointed, change the responsibilities or end the LPA completely.
You will need to send a “Partial Deed of Revocation” (for a change) or a “Deed of Revocation” (if ending) in a written statement to the Office of the Public Guardian. If an attorney’s details e.g. name or address changes or if they die, you will also need to notify the office.