Lasting Powers of Attorney and Deputyship

A Lasting Power of Attorney is a legal document which permits people (the Attorneys) nominated by you (the Donor) to make decisions on your behalf in certain situations. If you were to lose capacity to deal with your affairs your attorney could step in on your behalf. However, if you do not have a LPA then someone, who may or may not be the person of your choice would need to make an application to the Court of Protection to be appointed as Deputy. This may take several months during which no one is authorised to take decisions on your affairs for you.

For more information, please see our blog on LPAs here.

There are two types:

1. Lasting Power of Attorney for Property and Financial Affairs – this provides for the handling and management of your assets (e.g. bank accounts, property, investments and pension).
2. Lasting Power of Attorney for Health and Welfare – this provides for the treatment you receive and the making of medical and/or welfare decisions (e.g. permitting a certain operation or treatment, arrangements for at home care and entering residential care).

The LPAs are independent of each other, and you can choose to have the same or different attorneys for each.

A Lasting Power of Attorney is made by making an application to the Office of Public Guardian by completing and submitting a relevant LPA application form.

The Application form requires your details and those who you wish to appoint as your attorneys. You may select up to four Attorneys. You and your Attorney(s) will need to sign the application before a witness.

You will also need a “certificate provider” to sign the form along with you. The Certificate Provider is signing to declare that you fully understand the implications of the LPA and you are not being pressured into making the LPA.

If you feel you would like our assistance in preparing your LPAs then you should get in touch with one of our specialist solicitors who can also act as your certificate provider.

An attorney can be anyone over the age of 18. Most commonly, people will choose their close family to be their attorneys, however Donors have the freedom to choose whoever they wish. Other common examples of attorneys are friends or solicitors.

You can have up to four Attorneys, and you can have substitute Attorneys in the event one or more are no longer able to fulfil the role for any reason. The number of attorneys is a personal choice and need not be the same on both LPAs.

We can discuss with you how this would work for you.

The Attorneys must only ever act in your best interests, and in doing so they must follow the principles of the Mental Capacity Act 2005, in particular:

1. Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
2. Each decision must be considered in its own right as a person may retain capacity to make some decisions but not have capacity to make more complex decisions
3. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
4. Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
5. Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
6. Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.

Most importantly, your Attorneys must always act in your best interests.

This depends on how you choose to allow your attorneys to act. There are four options:

1. You can appoint one sole Attorney who acts solely. They will act on their own and have sole decision-making powers under the LPA.
2. You can appoint multiple Attorneys to act jointly and severally. This means the attorneys can make decisions on their own or together. This is the most practical option as it ensures urgent decisions can be made without the need to obtain all attorney’s approval. If one attorney dies or can no longer act, your LPA will still be valid with the remaining attorney(s).
3. You can appoint multiple Attorneys who act jointly. This means that every decision must be made unanimously, which allows less flexibility.
4. You can appoint multiple Attorneys who act jointly for some decisions, and jointly and severally for others. If you feel some decisions are so important, they need to be unanimous.

We can help you select the best option for you but ensuring that the LPA remains valid if any attorney is no longer able to act.

An Attorney’s power ceases on bankruptcy (for Property and Financial Affairs), incapacity, or death.

As a failsafe to ensure your LPA continues to operate, you can choose to nominate Replacement Attorneys. The requirements for a Replacement Attorney are the same as the Attorney, i.e. they must be 18 or older. In the absence of a Replacement Attorney your LPA may no longer work or may not longer be valid, and an application for Deputyship will be required.

A Donor can include guidance on how they would like their Attorneys to act by way of Preferences and Instructions.

Preferences are not binding on the Attorney but can give the Attorneys helpful guidance on what is important when making decisions on your behalf in your best interests.

Instructions tell your Attorneys how to act and they must be followed. If the OPG considers that what you instruct may in certain circumstances be unworkable they will not register your LPA.

We can provide expert advice on wording of your important preferences and instructions.

This is a person who is over 18 and their role is to ensure that you

• are not being pressured by anyone in making the LPA and
• you understand what the LPA is and the implications of entering into it

Your Certificate Provider can be either:

• A professional with the relevant expertise to make the assessment, e.g. a doctor or solicitor.
• Someone you have known closely for at least two years, e.g. a friend, colleague or neighbour.

There are a number of restrictions on who can be the Certificate Provider which are detailed on the document.

There is a specific order in which an LPA must be signed. If this order is not followed, the OPG will refuse the application.

Who can witness?

• They must be over 18.
• They cannot be an Attorney or Replacement Attorney.
• They can be the Certificate Provider.
• The same witness can witness every signature.

We can assist our clients in acting as Certificate provider and/or witness.