Having a lasting power of attorney (LPA) in place ensures that someone can help you make decisions or act on your behalf should the need arise in the future. You may have assumed that your spouse or a close family member can automatically make healthcare decisions for you and look after your finances if need be but, unfortunately, this isn’t the case. If you don’t have an LPA in place and you become unable to handle your affairs, the Court of Protection may have to intervene.
At Trinity Finance, we can make and register an LPA for you, giving you peace of mind that your affairs will be looked after in the future. In this guide, we’ll explain what an LPA is, when to set one up, how to make, register and change one as well as the steps to take if you wish to end your LPA.
What is a lasting power of attorney?
A lasting power of attorney is a legal document that appoints someone you trust, known as your attorney, to help you make decisions or make them on your behalf if you lose the mental capacity to do so yourself. An LPA must be registered to become valid and there are two types to consider, which are known as a health and welfare LPA and a property and financial affairs LPA in England and Wales. You can set up one or both of these types.
A health and welfare LPA
This covers decisions about your health and general welfare and can only be used once you’ve lost the ability to make your own decisions. It can allow your attorney to make decisions about:
- Your daily routine, such as washing, eating and dressing
- What medical care you need
- Where you live — for example, you may need to move into a care home
- Who you should have contact with
- Whether you need life-sustaining treatment
You can decide whether your health and welfare LPA is to apply to certain aspects of your care or all decisions relating to it.
A property and financial affairs LPA
This type of LPA covers decisions about your property and finances. It can either be used once you’ve lost your mental capacity or as soon as it’s registered, depending on your preference. It can allow your attorney to make decisions about:
- Managing your bank or building society account and any other financial accounts
- Paying bills, including your mortgage payments
- Collecting your pension or benefits
- Handling repairs to your property
- Selling your home, if necessary
Your attorney will need to ensure your money is kept separate from theirs and keep accounting records. You can stipulate that copies of these records are to be sent to your solicitor or other appointed person should you lose your mental capacity. Just like a health and welfare LPA, you can decide whether your property and financial affairs LPA allows your attorney to make decisions relating to every aspect or select matters, such as managing your bank account.
Our protection consultants – located throughout Kent, London and Edinburgh – can discuss these types of LPA with you in more detail. They can help you decide whether to set up one or both types and whether to apply restrictions or allow your attorney to make all of the necessary decisions on your behalf. Differences apply to having an LPA in Scotland or Northern Ireland so it’s important to speak with your protection consultant for the correct guidance. For example, the two types of LPA are known as a continuing power of attorney and a welfare power of attorney in Scotland. If you decide to arrange power of attorney for both types, you can benefit from a combined continuing and welfare power of attorney instead of having to make separate applications.
Just give us a call on 01322 907 000 when you’re ready and take the first step towards ensuring someone you trust will be able to make decisions regarding your health and/or finances when you can’t. If you’d like more information but aren’t available to speak over the telephone, send an email to us at firstname.lastname@example.org or an enquiry via our contact form and we’ll reply to you as quickly as possible.
Who can be an attorney?
The person you choose to act as your attorney can be a spouse or partner, relative, friend or a professional, such as a solicitor. They must be at least 18 years old and have the mental capacity to make decisions themselves. They don’t need to be a British citizen or live in the UK but do need to be someone you trust to deal with your affairs when you’re unable to. Think about their capability to make decisions in your best interests and how they take care of their own affairs. For a property and financial affairs LPA, you can’t choose someone to act as your attorney who is bankrupt or subject to a Debt Relief Order. If you prefer, you can choose more than one attorney. In this case, you need to decide how you prefer them to act — jointly or jointly and severally.
Joint attorneys have to act together, meaning they all need to agree on a decision before it’s implemented. This makes it harder for one attorney to make a decision that may not necessarily be in your best interests.
Joint and several attorneys
This arrangement means that your attorneys can act independently as well as together. You can also stipulate that some decisions must be made jointly while others can be made jointly and severally. For example, you may prefer your attorneys to make joint decisions when managing your bank and other financial accounts but prefer to leave it to one attorney to look after your property.
When making your LPA, be sure to nominate replacement attorneys in case your original attorneys are unable to act on your behalf in the future.
When to set up a lasting power of attorney
You can make an LPA at any time to ensure you have something in place should you lose your mental capacity in the future. However, it’s particularly recommended to set one up if you think you may suffer from a mental illness – for example, if there’s a history of this in your family – or if you’ve been diagnosed with an illness that may impede your ability to make decisions for yourself. Examples of instances when you may lose your mental capacity include sustaining a brain injury, suffering from dementia, suffering from complications as a result of drug or alcohol abuse or being adversely affected by the side effects of a medical treatment.
How to make a lasting power of attorney
To make an LPA in England and Wales, you need to be 18 or over and have mental capacity, which means you must be capable of making your own decisions. You don’t need to be a British citizen or live in the UK. You can either apply online via the government’s website or fill in the relevant paperwork obtained from the Office of the Public Guardian (OPG). At Trinity Finance, we provide an LPA service and our protection consultants can prepare the paperwork for you and ensure your application has been completed correctly. Once it has been filled in, your application needs to be signed by witnesses, your attorney(s) and a certificate provider. A certificate provider is someone who can confirm that making the LPA is your choice and that you fully understand what it entails.
You may have named people in your LPA who are to be notified before it’s registered. If so, the next step is to officially notify these people using an LP3 form as this provides them with a short time frame within which to raise any objections with the OPG. They may, for example, feel that you’ve been pressurised into making an LPA or that an attorney won’t act in your best interests.
Register your LPA
When your LPA has been made and notification has been sent to the relevant people, your LPA application needs to be registered with the Office of the Public Guardian and you need to pay a registration fee. This fee is payable per LPA application so you’ll need to pay two fees to register both types of LPA. You may be eligible for a reduced registration fee if you have a low income or be exempt from paying the fee if you receive certain benefits. Your LPA will not become valid until the registration process with the OPG has been completed, which can take up to 20 weeks.
There are different stipulations for making an LPA in Scotland or Northern Ireland so it’s important to check with your protection consultant before proceeding. Regardless of where you live in the UK, it’s best to get professional advice before making an LPA. Our protection consultants – located throughout Kent, London and Edinburgh – are available to discuss this with you and prevent any issues that may otherwise occur in the future, particularly if you have complex affairs. For example, if you complete the application yourself and it contains a mistake, the OPG may allow you to correct it within a certain time frame but will charge an extra fee when you resubmit it.
Can you change your lasting power of attorney?
There are instances when you may need to make changes to your LPA. For example, you may wish to remove an attorney from your LPA due to a disagreement or divorce. In this case, you can submit a partial deed of revocation to the OPG. To add a new attorney, however, you must end your existing LPA and create a new one.
What happens if you wish to end your lasting power of attorney?
Your LPA will remain valid until you die unless you choose to cancel it. You can do this yourself as long as you still have the mental capacity to reach this decision. To end your LPA, you need to send a deed of revocation to the OPG along with the original LPA.
There are other ways that your LPA can end. Your attorney may lose mental capacity and, therefore, be unable to make decisions on your behalf. The person you appointed may no longer wish to be your attorney or you may have appointed your spouse but have since divorced. Another scenario may be that someone is removed as your attorney by the Court of Protection. Regarding a property and financial affairs LPA, it will end if either you or your attorney is subject to a Debt Relief Order or becomes bankrupt. If you only appointed one attorney and they die, your LPA will end if you haven’t nominated a replacement attorney. Your LPA can continue, however, if an attorney dies but you appointed more than one in a jointly and severally liable capacity.
We can arrange your lasting power of attorney
We understand how stressful it can be to deal with this type of matter and how complicated legal documents can seem. At Trinity Finance, we’re here to make the process as straightforward as possible for you, no matter how complex your affairs are. Our mortgage and protection consultants are highly skilled in this area and will discuss everything in an understandable, jargon-free manner to help you formulate a lasting power of attorney that’s right for you.
For peace of mind that your health and/or financial affairs will be looked after by someone you trust if you’re unable to make decisions yourself, just get in touch with us to get your LPA application underway. Give us a call on 01322 907 000 to speak with one of our LPA specialists or, if you prefer, send an email to us at email@example.com or an enquiry via our contact form and we’ll reply to you as quickly as possible with more information. As well as assisting you with your lasting power of attorney, our protection consultants can provide expert estate planning advice. This includes guidance on inheritance tax and helping you to make a will so that your estate is handled according to your wishes and your loved ones are protected when you’re no longer here.