What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a special legal document that survives the loss of mental capacity unlike a general power of attorney which doesn’t.
An LPA must be made whilst the donor (the person making the LPA) still has mental capacity.
There are three parts to an LPA.
Part A deals with the donor’s wishes. Attorneys are nominated, powers are granted and guidance can be given. In addition people can be named to be notified when the LPA is sent for registration at the Office of the Public Guardian (OPG). This is a safeguard to help detect an LPA being activated before it should be.
Part B is where the Certificate provider confirms that the donor is making the LPA for the right reasons (e.g. not under pressure to do so) and understands the powers being given and to whom. This can be completed by a professional e.g. a doctor or barrister, or by someone who has known the donor well for at least two years.
Part C is where the nominated attorney(s) and replacement attorney(s) (if any) agree to act as an attorney and confirm that they understand the nature and purpose of the role.
Two types of Lasting Power of Attorney
The LPA property and Financial Affairs which can deal with buying and selling property and all types of financial transaction relating to the donor.
The LPA Health and Welfare which can deal with giving or refusing life sustaining treatment, medication, where the donor lives, diet and much more.
Other parts of the process require the donor’s signature and all the attorneys and replacement attorneys’ signatures to be witnessed.
Following the completion of all the parts the LPA can be sent to the OPG for registration straightaway if it is an LPA Finance and property or only after capacity is lost if it is an LPA Health and Welfare.
The registration fee is now £130 as of 1st October 2011 except when the financial circumstances allow the lower fee of £65. If there are any errors on the LPA form it is very likely to be rejected. In these circumstances a resubmission fee is payable which will be 365 if the LPA is returned within 3 months or the full fee again if it is later.
For some people the delay caused by the rejection can be critical because if the donor loses capacity in this period no LPA can be made at all.
In these circumstances or indeed in any circumstances where someone has lost capacity and there is a need to give legal authority to someone to make decisions for another there needs to be an application to the Court of Protection to appoint a deputy.
Unfortunately this process is both slow and expensive and is likely to cost much more than getting an LPA in place.
Once a deputy is appointed there is an annual fee to be paid as well which is currently £320. The expense and bother of going to the COP is best avoided as many people who have done it would attest.
So it does make sense to get your Lasting Power of Attorney sorted out now unless a time comes when it is too late to do it.
