Since 2007, when the Mental Capacity Act 2005 came into force, Lasting Powers of Attorney (LPAs) have taken the place of Enduring Powers of Attorney. A power of attorney allows someone else to make decisions on your behalf if you lack the capacity to do so yourself.
When setting up an LPA, you must nominate at least one attorney, but you can have more if you wish. If you do have more than one attorney, you must decide whether you want them to act together, separately, or together for some matters and separately for others. You can also, if you wish, appoint a replacement if your original choice of attorney is no longer able to act on your behalf. For instance, if, when the LPA was first registered, you appointed a sibling as attorney, you might later wish to appoint your grown-up children to act on your behalf in the event of the death of your brother or sister.
Creating an LPA involves the completion of forms that must be registered with the Office of the Public Guardian, where the application will be checked. Current waiting times are around 13 weeks and there is a six-week period during which anyone may object to the LPA. You can complete the application yourself, using forms available on the Directgov website, but in most cases, particularly if there are any complications, it is advisable to apply through a solicitor.
LPAs may be set up to allow your designated attorney(s) to take decisions on your behalf in matters of property and financial affairs or in matters relating to your health and personal welfare. For instance, you might want someone to manage your bank account on your behalf, or to appoint someone who understands your wishes in this regard to take decisions about your health treatment.
Current registration fees are £130 for each LPA. If you wish to register a health and welfare LPA and a property and financial affairs LPA, the total fee would therefore be £240, not including any professional fees if you apply with the help of your solicitor. The £130 may be waived if you are on income support, jobseeker’s allowance, or certain other benefits. There are also discounts for those on low incomes.
Various safeguards are built into the system to prevent anyone being forced into an LPA against their wishes. An independent person must act as a ‘certificate provider’. This person must either have known the person making the LPA for at least two years or be a professional, such as a solicitor, doctor or social worker, and they must sign the application forms to verify that the person making the LPA has not been pressured into taking out the application.
An LPA may only be used if and when the person who made it is no longer able to act or lacks the capacity to make decisions for him/herself and must be registered with the court before it can be used.