An Attorney appointed by the Donor will act on the Donor's behalf in managing the Donor's financial/ property and/or health and welfare affairs. The Attorney must, therefore, be someone the Donor trusts. Important things to note are as follows:
(i) Different Attorneys can be appointed for each of the Donor's LPAs.
(ii) A Donor must decide how much authority to give their Attorney(s). This can range from absolute discretion, to a requirement to follow certain preferences or written instructions.
(iii) Where more than one Attorney is appointed on an LPA, the Donor should state whether all decisions are to be unanimously (jointly), or whether each Attorney is able to make binding decisions for you (jointly and severally). If they have to make joint decisions they must agree unanimously and make the decisions together.
(iv) It is recommended that the Donor appoint Replacement Attorney(s) in case an Attorney cannot act. This will avoid the LPA failing in due course. For example, unless more than one Attorney has been appointed (AND provided with the ability to act jointly and severally), your LPA will fail if an Attorney dies, loses the ability to make decisions (loses mental capacity), divorces you/ ends your civil partnership, or is removed by the Court of Protection.
(vi) If an Attorney becomes bankrupt or subject to a debt relief order, they will no longer be permitted to act as Attorney for the Financial Decisions LPA. Unless a replacement Attorney has been appointed, this will end the LPA.
(vii) You can complain to the Office of the Public Guardian if you have concerns about your Attorney, for example, if they are not carrying out their responsibilities properly.
We recommend that once your LPA has been signed and certified, a copy is created in case the original is misplaced. This copy should be 'certified' to prove that it is a genuine copy. You can only certify your LPA if you are able to make your own decisions, so it is best that the certified copy/copies are made as soon as possible after creating your LPA.
You (assuming you have mental capacity) or your Attorney can then use this certified copy to register your LPA if you no longer have the original form. The certified copy can also be used by the Attorney as proof of their permission to make decisions on your behalf. For example, to manage your bank account.
If the copy is not certified by you, it will not be valid.
To certify a copy of your LPA, write the following text on the bottom of every page of the copy:
“I certify this is a true and complete copy of the corresponding page of the original lasting power of attorney.”
On the final page of the copy, you must also write:
“I certify this is a true and complete copy of the lasting power of attorney.”.
You will need to sign and date every page.
The LPA cannot be completed until it has been signed by a Certificate Provider.
A Certificate Provider must be over 18 years old. S/he must be impartial to the LPA. A Certificate Provider can be either a professional who can show that they have the relevant skills to make a judgment about your mental capacity (such as a GP, Social Worker, Solicitor), or someone who has known you for at least 2 years.
They cannot be:
- a member of your or your Attorney's family;
- a business partner or paid employee of yours or any of your Attorney(s);
- an Attorney appointed in the LPA - or any other LPA or any EPA made by you;
- the owner, director, manager, or an employee of a care home in which you currently live or their family member; or
- a director or employee of a trust corporation appointed as Attorney in the LPA.
The Certificate Provider's purpose is to ensure and confirm that –
(i) you understand what you're doing in making the LPA, and the significance of it;
(ii) you have not been unduly or unfairly influenced by anyone else, or put under any pressure to make the LPA;
(iii) there has been no fraud involved in making the LPA;
(iv) there are no reasons for concern surrounding the making of the LPA
The Certificate Provider cannot sign the LPA if they have any doubts regarding the above.
If possible, the Certificate provider should discuss your LPA with you in private, without your Attorneys or other people present, before they sign to certify their section of the LPA.
The Court of Protection is based in London and operated by Her Majesty's Courts and Tribunal Service. It was set up under the Mental Capacity Act 2005 to enable Judges to:
(i) make decisions on whether people have mental capacity in relation to particular decisions,
(ii) decide whether someone has the mental capacity to make a particular decision for themselves,
(iii) consider applications to make statutory wills or gifts,
(iv) make decisions in relation to the financial or welfare needs of those people who lack the mental capacity to make such decisions for themselves,
(v) appoint or remove people (deputies) who make decisions on people's behalf,
(vi) make decisions relating to Lasting Powers of Attorney, including the consideration of any objections to their registration,
(vii) make decisions about when someone can be deprived of their liberty under the Mental Capacity Act,
(viii) consider applications to sell jointly owned property
To end your LPA after it has been registered you must prepare a Deed of Revocation and send it to the Office of the Public Guardian. You must be able to make your own decisions when you end your LPA. Use the following wording:
“This deed of revocation is made by [your name] of [your address].
1: I granted a lasting power of attorney for Property and Financial Affairs/Health and Welfare (delete as appropriate) on [date you signed the lasting power of attorney] appointing [name of first attorney] of [address of first attorney] and [name of second attorney] of [address of second attorney] to act as my attorney(s).
2: I revoke the lasting power of attorney and the authority granted by it.
Signed and delivered as a deed [your signature] Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]”
If you wish to amend your LPA to remove a person from the LPA, you can make a partial deed of revocation, by using the following wording:
“This partial deed of revocation is made by [donor’s name] of [donor’s address].
1: I granted a lasting power of attorney for Property and Financial Affairs/Health and Welfare [delete as appropriate] on [date donor signed the lasting power of attorney] appointing [name of first attorney] of [address of first attorney] and [name of second attorney] of [address of second attorney] to act as my attorney(s).
2: I hereby revoke [attorney’s name that you are revoking] ONLY from the lasting power of attorney and the authority granted to him/her.
Signed and delivered as a deed [donor’s signature] Date signed [date]
Witnessed by [signature of witness]
Full name of witness [name of witness]
Address of witness [address of witness]”
You must send the deed of revocation (or partial deed of revocation) to the Office of the Public Guardian with the original LPA document. You must also tell your Attorney(s) that you are ending your LPA.
This is both the person creating the Lasting Power of Attorney (LPA) and to whom it applies. There are important things for the Donor to note:
(i) Only you, the Donor, can give others (the Attorney/Attorneys) the power to make decisions on your behalf. This applies whether you get help making your LPA or not.
(ii) An LPA is for one person (one Donor) only.
(iii) A Donor can make an LPA if they are at least 18 years old and have the mental capacity to do so.
(iv) It is perfectly acceptable to get help when making your LPA. Many people talk to family, friends or a legal adviser. However, you alone must make the decisions about your LPA. For example, no one else should choose your Attorneys for you or which type of LPA is best for you.
(v) If you use more than one name or used to be known by a different name, you should make a list of these. This will help your Attorney(s) deal with banks and other organisations on your behalf if your LPA is used.
(vi) For an LPA regarding your financial decisions, you must live or have property or assets within England/Wales. We recommend you seek independent legal advice should you own property abroad as your LPA may not be recognised in a different legal jurisdiction. Certainly, you or your solicitor will need to obtain advice in the local jurisdiction to ascertain whether the LPA is acceptable.
(vii) If you are bankrupt, or subject to a debt relief order, whilst you can create and register the LPA, your Attorney(s) will not have power over all of your property as this will be subject to decisions by your creditors. If you become bankrupt or subject to a debt relief order after creating or registering your financial decisions LPA, it will be cancelled. Bankruptcy does not affect a health and care decisions LPA.
If you are finding it increasingly difficult to get to the bank or to manage your day to day financial or property affairs, then a financial decisions LPA makes it clear who has your authority to handle things for you, and what this authority covers.
You do not have to lack mental capacity for the financial decisions LPA to be authorised and carried out. This can take effect, should you wish, as soon as it has been registered. Your Attorney must, however, allow you to make decisions yourself whilst you have the mental capacity to do so.
It is perfectly acceptable for you to create two separate financial decisions LPAs; one for domestic matters, and the other in relation to the management of any businesses owned by you.
For an LPA regarding your financial decisions, you must live or have property or assets within England/Wales. We recommend you seek independent legal advice should you own property abroad as your LPA may not be recognised in a different legal jurisdiction. Certainly, you or your solicitor will need to obtain advice in the local jurisdiction to ascertain whether the LPA is acceptable.
If you are bankrupt, or subject to a debt relief order, whilst you can create and register the LPA, your Attorney(s) will not have power over all of your property as this will be subject to decisions by your creditors. If you become bankrupt or subject to a debt relief order after creating or registering your financial decisions LPA, it will be cancelled. Bankruptcy does not affect a health care decisions LPA.
Like the financial decisions LPA, this document can be created at any stage. However, unlike the financial decisions LPA, the health and care decisions LPA only becomes operational once you have lost mental capacity.
You need not choose the same Attorney as instructed for the financial decisions LPA, but it must be someone in whom you trust.
You will have to state in your health and care decisions LPA what you'd want to happen if you needed life-sustaining treatment when you no longer have the mental capacity to communicate your decision. Life sustaining treatment includes care, surgery, medicine or other help from medical practitioners in order to keep you alive. For example, a heart bypass, organ transplant, or cancer treatment such as chemotherapy. The need for a life sustaining treatment could also occur during an otherwise straight forward operation which does not go according to plan. It could simply mean the administration of antibiotics, should that be sufficient to sustain your life in the circumstances. It is accordingly extremely useful for your Attorneys and medical professionals to know your wishes.
You can either choose to give your Attorneys the authority to grant or refuse your consent to life sustaining treatment on your behalf (Option A), or you could choose not to give your Attorneys this authority (Option B). This will mean that the doctors will make such decisions on your behalf instead of your Attorney. Such decisions will always be in your best interests, as determined medically, but they can take into consideration the views of your Attorneys and others involved in your welfare.
At the end of the LPA there is also a section where you can add instructions and preferences for your Attorney regarding life sustaining treatments. For example, you may have specific wishes about the conditions under which your Attorneys must or must not consent to the same. This must be made clear in this section.
If you have more than one Attorney per LPA, you must decide whether they should act jointly, or 'jointly and severally'. This means that they can either act together or they can act on their own. For example, if you were in the hospital and a decision needed to be made on your behalf but the doctors could only get in contact with one of your Attorneys, s/he could still make the decision for you without involving the other Attorney(s).
Allowing your Attorneys to act jointly and severally also means that if one Attorney is unable to act, for example, because s/he has died, the remaining Attorney(s) will still be able to act. If you have chosen a Replacement Attorney, s/he can step in to act with the remaining Attorney(s).
You could opt for the Attorneys to act jointly for some decisions, and jointly and severally for other decisions. You can specify the decisions that must be made together and the decisions where the Attorneys can act alone. If you choose this option, you must specify the decisions that must be made together on the LPA.
If you have more than one Attorney, you cannot give a particular decision to a particular Attorney. For example, you could not say that decisions regarding your medical treatment must only be made by your first Attorney.
Life-sustaining treatment is any treatment a doctor considers necessary to keep you alive. Decisions about life-sustaining treatment can be needed in unexpected circumstances. One example is a routine operation where things don't go as planned.
It may include a respirator, cardiopulmonary resuscitation (CPR), chemotherapy, radiotherapy or other cancer treatment, dialysis, an organ transplant, surgery (such as a heart bypass), and other medical procedures such as artificial nutrition or hydration via intravenous means.
Whether some treatments are life-sustaining depends on the situation. For example, if someone had pneumonia, a simple course of antibiotics could be life-sustaining.
If you don't allow your Attorney(s) to give or refuse consent to this treatment on your behalf, your doctors will make decisions about life-sustaining treatment. Your Attorneys can only make decisions about life-sustaining treatment if you don't have mental capacity.
Mental capacity means the ability to make an informed decision. If a person has mental capacity, they are able to make decisions for themselves. To this extent, they will have at least a general understanding of the decision they need to make, why they need to make it, and what is likely to happen when they've made it.
The legal definition within the Mental Capacity Act 2005 says that someone who lacks capacity cannot do one or more of the following four things:
(i) Understand information given to them that is relevant to the decision
(ii) Retain that information long enough to be able to make the decision
(iii) Weigh up the information available to make the decision
(iv) Communicate their decision, whether by talking, writing, sign language, or even simple muscle movements such as blinking an eye or squeezing a hand.
People can sometimes make certain decisions but don't have the mental capacity to make others. For most day-to-day actions or decisions, the person's family or carer will assess their capacity to make particular decisions.
The types of decision that are covered by the Mental Capacity Act range from day-to-day decisions about things such as what to wear or eat, through to serious decisions such as where you live, deciding if you need to have an operation or what to do with your money and property.
The Mental Capacity Act says that before anyone acts on behalf of someone who lacks capacity they must have a reasonable belief that the person lacks capacity. Any actions taken on your behalf must also be in your best interests.
You do not have to lack mental capacity for the financial decisions LPA to be authorised and carried out. This can take effect, should you wish, as soon as it has been registered. This is useful if you are finding it difficult to get out and about. Your Attorney must, however, allow you to make decisions yourself whilst you have the mental capacity to do so.
There is only one type of power of attorney in Northern Ireland. This is called an Enduring Power of Attorney and must be created by a solicitor practising in Northern Ireland. It allows someone to manage all your financial affairs, similar to the English financial decisions LPA. There isn't a separate power of attorney that lets someone make decisions about your health and care. More information can be found by clicking on this link: www.nidirect.gov.uk/articles/managing-your-affairs-and-enduring-power-attorney.
We charge a highly competitive, inclusive fee of £69 for one LPA or £99 for both LPAs (assuming they are for the same Donor), which is only payable once you are happy with the content of your LPA. This fee includes all assistance and guidance you may require until you are happy with the completed document.
There are no additional costs involved, although you will be required to pay a separate fee to the Office of the Public Guardian when registering your LPA. This fee is currently £82 per LPA.
When creating an LPA, the Donor can nominate up to 5 people, who will then be informed by either the Donor (if capable of making decisions) or the Attorney(s) when the LPA is ready to be registered. These Persons to be Notified can lodge objections to the registration of the LPA if appropriate, which provides a failsafe.
The grounds for objection to the registration include:
- the Donor and an Attorney were married or had a civil partnership but have divorced or ended the civil partnership
- the Donor or an Attorney has died
- an Attorney doesn't have the mental capacity to be an Attorney
- an Attorney has chosen to stop acting (sometimes called 'disclaiming their appointment')
- the Donor or an Attorney are bankrupt, interim bankrupt or subject to a Debt Relief Order (this is only relevant for financial decisions LPA Attorneys)
- the LPA isn't legally correct
- the Donor did not have the mental capacity to make the LPA
- the Donor cancelled their LPA when they regained the capacity
- there was fraud, e.g., someone faked the Donor's signature
- the Donor was pressured to make an LPA
- an Attorney is acting against the Donor's best interests.
An LPA can only take effect once registered. An Attorney cannot act on behalf of the Donor until the registration process is complete. This process usually takes between 2 – 3 months.
To register, you must send your signed and certified LPA via post to the Office of the Public Guardian (OPG) at the following address: Office of the Public Guardian PO Box 16185 Birmingham B2 2WH. A registration fee is payable to the OPG of £82 per LPA, unless you are entitled to a reduction or exemption. The form used to apply for a redemption is available to download free of charge from the OPG website.
The registration process can be carried out by your Attorney if you are unable to make your own decisions. You will be told if they do so, which allows you to object to the registration should you wish. The objection form is available to download free of charge from the OPG website.
Before the LPA can be registered, you (or your Attorney on your behalf) will need to send form 'LP3' (free and available online from the OPG) to notify the people you have nominated in your LPA that you now intend to register the LPA. They will then have 3 weeks to raise any objections with the OPG. See Person to be Notified for further information.
More information regarding the registration process, to include fee exemption/reductions can be found on the OPG's website: www.gov.uk/government/organisations/office-of-the-public-guardian
In Scotland, an LPA is simply called a 'Power of Attorney' (PoA). A person who has mental capacity can make a PoA from the age of 16. The Attorney(s) can also be as young as 16. You can have a Continuing PoA and/or a Welfare PoA, which are created and work in the same way as the financial decisions LPA and the health and care decisions LPA respectively. Or you can opt for a combination of the two (a Combined PoA), which is more common. The process is very similar to that of England and Wales, although the certificate provider must either be a solicitor or medical practitioner, who will interview you before certifying the PoA. Further information can be found at: www.publicguardian-scotland.gov.uk/power-of-attorney
The LPA Advice Company made the process of completing both of my LPA’s simple and straight forward. More importantly, they saved me several hundred pounds in comparison to the quotes I received from my Solicitor. A huge thumbs up from me!
Angela, 75, Lancashire
Well worth the piece of mind to ensure the complicated LPA forms were completed quickly and without error. Recommended to all of my friends.
Max, 70, West Midlands