What Are The Rules For Lasting Power Of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that gives a person, known as the attorney, the authority to make decisions for another person, the donor, if they lose their mental capacity. This article will provide you with essential knowledge about the rules for LPAs in the UK.

Reading this article will support you in the following:

• Knowing why is key to understanding LPAs.
• Learning about the different types of LPAs and their legal framework.
• Getting insights into the roles and responsibilities of an attorney.
• Understanding the benefits of knowing about LPAs.
• Knowing how to act after you have read the article.

What are the Rules for Lasting Power of Attorney?

To make an LPA, the donor must be 18 or over and have the mental capacity to do so. The person they appoint, the attorney, will have the power to make decisions about the donor’s property, financial affairs, health and welfare if they lose their mental capacity.

The donor must sign the LPA, the attorney, and a certificate provider, who must confirm that the donor understands what they are doing and is not pressured into making the LPA.

The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used, even if the donor still has mental capacity.

This registration process involves completing an LPA form, signing it by all parties and paying a fee. It is important to note that the LPA cannot be used until it is registered with the OPG and the donor has lost mental capacity.

The attorney must always act in the best interests of the donor. They must not take advantage of their position or make decisions that go beyond the powers given to them by the LPA. If they fail to meet these standards, they could be removed by the OPG or the Court of Protection.

Understanding Lasting Power of Attorney (LPA)

A Lasting Power of Attorney is a legal document that allows a person (the donor) to appoint one or more people (or attorneys) to help them make decisions on their behalf.

This gives the donor more control over what happens to them if, for example, they have an accident or an illness and can’t make decisions at the time they need to be made.

There are two types of LPAs: property and financial affairs LPA and health and welfare LPA. A donor can choose to make one type or both. It’s also possible to appoint more than one attorney.

If a donor appoints more than one attorney, they can appoint them always to act together (jointly) or to act together or separately (jointly and severally).

Types of Lasting Power of Attorney

Property and Financial Affairs LPA

A Property and Financial Affairs LPA gives the attorney the power to decide about the donor’s money and property. This includes managing a bank or building society account, paying bills, collecting benefits or a pension, or selling the donor’s home.

The donor can limit the types of decisions the attorney can make or let them make all decisions on their behalf. With the donor’s permission, the attorney under a Property and Financial Affairs LPA can make decisions once the LPA is registered.

Health and Welfare LPA

A Health and Welfare LPA allows the attorney to decide on the donor’s behalf about their health and personal welfare. For example, this could involve decisions about medical treatment or where the donor lives.

The attorney can only use this type of LPA once registered and the donor cannot make these decisions themselves. The donor can also give the attorney the power to accept or refuse life-sustaining treatment on their behalf.

Steps You Can Take to Understand the Rules for Lasting Power of Attorney

Stimulating the Lasting Power of Attorney (LPA) rules is important. By doing so, you can make informed decisions about who you trust to manage your affairs if you cannot do so. This section will guide you through key steps to effectively understand and utilise the rules for LPA.

These steps ensure you understand LPAs and feel confident in selecting an attorney and registering an LPA. We will cover everything from essential knowledge gathering to seeking professional advice.

Step 1: Research and Understand LPAs

The first step in understanding the rules for LPAs is to conduct thorough research. Educate yourself about the two types of LPAs: Property and Financial Affairs LPA and Health and Welfare LPA. Understand the powers and limitations of each type.

Online resources, such as the government’s official website, can provide helpful information. This will help you gain a basic understanding of LPAs. Also, keep updated on any changes to the Mental Capacity Act, which governs LPAs.

Step 2: Identify Potential Attorneys

The next step is identifying who you want to appoint as your attorney. Think carefully about who you trust to make decisions in your best interest. This could be a family member, a friend, or a professional attorney.

It would be best if you had a conversation with the person you wish to appoint. Make sure they are willing and able to take on the role. If you decide to appoint more than one attorney, consider how they will work together and whether they should make decisions jointly or independently.

Step 3: Seek Legal Advice

Once you have a basic understanding of LPAs and have identified potential attorneys, seeking legal advice is a good idea. A solicitor can answer any questions you may have and guide you through the process of making an LPA.

Legal advice can be beneficial if your affairs are complex. For instance, if you own a business or have property overseas, a solicitor can help you navigate these complexities. The Law Society can provide a list of solicitors who specialise in LPAs.

Step 4: Register the LPA

The final step is registering the LPA with the Office of the Public Guardian. You will need to complete an LPA form and pay a fee. Remember, an LPA cannot be used until registered, even if the donor still has mental capacity.

Registering the LPA can take up to 10 weeks. Registering the LPA as soon as possible is a good idea, even if you don’t think you’ll need it immediately. This ensures it’s ready to use when needed.

The Legal Framework Governing LPAs

The legal framework guiding LPAs in the UK is the Mental Capacity Act 2005. It sets out who can make an LPA and how it can be used. Understanding this law is vital for anyone considering making an LPA.

The Act sets out fundamental principles that must be followed. These include presuming a person has capacity unless proven otherwise and making decisions in the person’s best interests. These principles are vital to ensure that the rights of individuals are respected and that they are not taken advantage of.

The Role and Responsibilities of an Attorney

Becoming an attorney is a significant responsibility. The attorney has to make decisions in the best interest of the donor. This duty extends to matters of health, welfare, property and financial affairs, depending on the type of LPA.

An attorney must keep the donor’s money and property separate from their own and keep accurate records of their dealings.

When making decisions, they must also consider the donor’s past and present wishes and feelings. They should seek advice, for example, from social services or medical professionals when necessary.

Criteria for Appointing an Attorney

When appointing an attorney, specific criteria must be met. The individual must be over 18, have mental capacity and be willing to take on the role. The donor can appoint anyone they trust, including a friend, family member or professional attorney.

If the donor appoints a replacement attorney, this person can step in if the original attorney can no longer act. The donor can appoint more than one attorney and specify if they should make decisions jointly or separately.

Registering a Lasting Power of Attorney

Registering an LPA is a crucial step. It involves completing an LPA form, signing it and paying a fee. The attorney cannot make decisions until the LPA is registered with the Office of the Public Guardian (OPG) and the donor has lost mental capacity.

The OPG provides a certified copy of the LPA to the attorney. The registration process can take up to 10 weeks. Registering the LPA as soon as possible is important, even if the donor still has mental capacity.

When and How an LPA Comes into Effect

An LPA comes into effect once it is registered with the OPG. For a Property and Financial Affairs LPA, the attorney can start making decisions once the LPA is registered, with the donor’s permission. A Health and Welfare LPA can only be used when the donor cannot make decisions.

It is the attorney’s responsibility to determine when the donor lacks capacity. They must follow the Mental Capacity Act and may need to seek medical advice. An attorney who acts when the donor still has capacity could be removed.

Decision-Making Authority Under an LPA

The decision-making authority of an attorney under an LPA depends on the type of LPA and any restrictions the donor has set. Generally, an attorney can decide about the donor’s property, financial affairs, health and welfare.

However, the attorney cannot decide about life-sustaining treatment unless the donor explicitly gives them this power in a Health and Welfare LPA. The attorney must always act in the donor’s best interests and consider their past and present wishes and feelings.

Safeguards and Limitations in LPAs

There are several safeguards and limitations in place to protect the donor. One key safeguard is that the attorney must always act in the donor’s best interests. The attorney cannot benefit themselves or others, dispose of the donor’s property or go beyond the powers granted to them in the LPA.

The OPG can investigate if they believe an attorney is not acting in the donor’s best interests. In severe cases, the attorney can be removed and a deputy appointed by the Court of Protection.

The donor can also set out specific limitations in the LPA. For example, they might specify that the attorney cannot make gifts from their property.

Revoking or Changing a Lasting Power of Attorney

A donor can change or revoke an LPA while they still have mental capacity. They must send a formal notice to the attorney and the OPG to do this. If the donor loses capacity, they can no longer revoke the LPA.

If an attorney wants to stop acting, they must notify the donor and the OPG. If there are replacement attorneys, they can step in. If not, and there’s no other attorney, the LPA may no longer be valid.

Dispute Resolution and Legal Recourse

If there is a dispute about an LPA, it can often be resolved through communication and mediation. However, applying to the Court of Protection may be necessary if this fails.

The Court can decide on LPA disputes and remove attorneys not acting properly. It can also appoint a deputy to make decisions if the LPA is no longer valid. Legal advice should be sought if you are involved in an LPA dispute.

Research on Lasting Power of Attorney Usage in the UK

Research indicates an increasing awareness and uptake of LPAs in the UK. According to the Office of the Public Guardian’s 2019/20 report, the total LPAs registered in England and Wales had risen to over 4 million, a significant increase from previous years.

This suggests that more people are taking steps to ensure their welfare and financial affairs are protected should they lose mental capacity.

However, despite the growing use of LPAs, there remains a lack of understanding about the rules governing their use.

A survey conducted by Solicitors for the Elderly and the Centre for Future Studies found that 73% of people didn’t know an LPA or misunderstood its purpose. This highlights the importance of education and information about LPAs and their rules.

The same survey revealed that 36% of respondents did not trust their closest relatives to make important decisions on their behalf, underlining the need for careful consideration when appointing an attorney.

This is a crucial aspect of the Lasting Power of Attorney process and highlights why understanding the rules and responsibilities is so important.

A Case Study on Applying the Rules for Lasting Power of Attorney

Here is a brief case study that brings the topic of the rules for Lasting Power of Attorney to life. This example should help make the information more relatable and practical.

Meet Margaret, a retired school teacher living in Manchester. Margaret had heard about LPAs but was unsure about how they worked. She decided to use the rules for Lasting Power of Attorney after attending an information session held by the solicitor’s regulation authority.

Margaret decided to appoint her daughter, Emily, as her attorney. Emily was trustworthy and understood Margaret’s wishes and values well.

Margaret completed the attorney form, which included details about her choice to grant Emily both property and financial affairs attorney and welfare attorney powers. She also specified that Emily could make decisions about life-sustaining treatment.

Margaret sought legal services to help her with the process. The solicitor explained the importance of registering the LPA with the public guardian OPG.

Margaret understood that this was an important decision and followed the advice. The solicitor also said that Margaret could change her LPA or make an advance decision if she changed her mind.

Having an LPA in place gave Margaret peace of mind. She knew that if she ever lost her mental capacity, Emily would make decisions in her best interests, following the principles of the Mental Capacity Act.

This case study highlights the importance of correctly understanding and applying the rules for Lasting Power of Attorney.

Key Takeaways and Learnings

This article has covered a lot of ground on the topic of lasting power of attorney. To help consolidate your knowledge, here are some key takeaways and actions you might consider:

• Research and understand the two types of LPAs: Property and Financial Affairs LPA and Health and Welfare LPA.
• Identify potential attorneys who you trust to make decisions in your best interest.
• Seek legal advice to help navigate the complexities of LPAs.
• Register your LPA with the Office of the Public Guardian to ensure it’s legally valid.
• Understand when an LPA comes into effect and the decision-making authority it grants to the attorney.
• Be aware of the safeguards and limitations in place to protect the donor.
• Know that you can revoke or change an LPA while you still have mental capacity.

To bring it all together, understanding the rules for lasting power of attorney is key to ensuring your welfare and financial affairs are managed according to your wishes should you lose mental capacity.

The process involves careful consideration, from choosing trusted attorneys to understanding legal frameworks and responsibilities. With the proper knowledge and support, you can make informed decisions that protect your interests and uphold your autonomy.

Frequently Asked Questions

Here are some frequently asked questions that may clarify key topics related to lasting power of attorney.

1. What is the difference between an ordinary power and a lasting power of attorney?

An ordinary power of attorney allows the appointed attorney to make financial decisions on the donor’s behalf for a specified period or until the donor revokes it.

However, it becomes invalid if the donor loses mental capacity. On the other hand, a lasting power of attorney remains valid even if the donor loses mental capacity, allowing the attorney to continue making decisions on their behalf.

2. Can a civil partner be appointed as an attorney?

Yes, a civil partner can be appointed as an attorney. The important factor is that the person appointed should be trusted and capable of making decisions in the donor’s best interest. They should understand the legal authority given to them and act within the scope of the powers granted by the LPA.

3. How does an LPA relate to decisions about medical treatments and life sustaining treatment?

A Health and Welfare LPA allows the attorney to decide about the donor’s health and welfare, including medical treatments. If the donor wants the attorney to determine life-sustaining treatment, this power must be stated explicitly in the LPA.

4. Can there be multiple attorneys and what is a joint attorney?

Yes, multiple attorneys can be appointed under an LPA. The donor can specify whether they should make decisions jointly (all attorneys agree) or jointly and severally (attorneys can decide independently). Joint attorneys can provide a broader range of perspectives and share decision-making responsibilities.

5. Does an attorney solicitor have any specific responsibilities?

Like any other attorney, solicitors must act in the donor’s best interests. They must follow the principles of the Mental Capacity Act and any restrictions in the LPA.

If they specialise in a relevant area, such as commercial property or employment law, they might provide valuable insights when making financial decisions. They must also consider inheritance tax implications when managing the donor’s property and financial affairs.