This is the first part of the information that will be put up on the subject of:
Lasting Power of Attorney What is a Lasting Power of Attorney?A lasting power of attorney (LPA) is a legal document that allows someone you trust to make decisions on your behalf and in your best interests. An LPA gives the person it has been created for more control over what happens to them.
If for some reason you lack the “mental capacity” to make decisions for yourself or you want someone to make these decisions on your behalf, this legal document allows the person/s the ability to act on your behalf in the legal world.
The following questions and answers covers basic facts taken from “An easy guide to lasting power of attorney” provided by the “Older People's Commissioner for Wales/Cymru” in partnership with “Office of the Public Guardian”.
Q & A
Why do I need an LPA?There are many advantages to making an LPA:
• It's a chance to talk to family and friends about how you want to manage your finances and your health and welfare.
• It will give you piece of mind and allow you to stay in control.
• It's quicker and cheaper than other ways of handling your decisions – such as applying to the courts for protection.
Who's involved in an LPA?There are two main roles involved in an LPA. The donor makes an LPA and appoints one or more “attorneys” to make decisions for them.
When you create an LPA you also need someone to cat as a “certificate provider” to state that you had the mental capacity when you made the LPA when you made the LPA. You can additionally name “people to notify”, who will be told when the LPA is registered.
Certificate providers and people to notify are extra safeguards to make sure the LPA truly represents your wishes.
What kind of LPA?Under a property and financial affairs LPA, you appoint an attorney or attorneys to take responsibility for such things as:
• Paying your bills.
• Collecting your income and benefits.
• Selling your home.
• Providing for your dependents.
You needn't have lost mental capacity to use this kind of LPA; your attorneys can start acting for you straight away if you wish them to. That might be useful if you want someone to manage your finances while your in hospital or abroad for a period of time.
A Health and Welfare LPA covers decisions such as;
• Where you live.
• What you ware.
• Your medical care.
• Whether to refuse life-sustaining treatment for you.
Unlike a property and financial affairs PLA, your attorneys can use a health and welfare LPA only when you no longer have mental capacity to make decisions for yourself.
For both types of LPAs, you can decide the things your attorneys can and can't make decisions about.
When can an LPA be used? Whether or not you still have mental capacity, an attorney can only use an LPA once the Office of the public Guardian, part of the ministry of Justice, has registered it. An unregistered PLA cannot be used.
You can male an LPA and register it later (or an attorney can register it for you) but it's a good idea to register the LPA as soon as you have created it. Sometimes LPAs contain mistakes but these can only be fixed while you still have mental capacity.
Remember: PLAs only come into effect when you have lost mental capacity or – in the case of a property and financial affairs PLA – when you decide.
It's easy to create an PLA online at
www.lastingpowerofattorney.services.gov.ukIf I loose mental capacity, can someone make an LPA for me then? No. If you don't have mental capacity, you cannot make an LPA nor can anyone else do it for you.
The only other way someone else can act on your behalf is if they apply to the Court of Protection to become your deputy.
A deputy has similar powers to an attorney. However, a deputy must send a report to the Office of the Public Guardian (OPG) and pay a fee every year. Their costs will come out of your assets. It's a lot more time-consuming and expensive that having an LPA.
Who can I have as an attorney? You can choose anyone over 18. For a financial-decisions LPA, your attorney also cannot be bankrupt. You should be sure you trust the person and that they know you well enough to make decisions for you. You could choose a relative, a friend or solicitor (who is lightly to be paid for the role). It's up to you.
Can I have more than one attorney? Yes. If you choose more than one attorney, you must decide how they will make decisions. The choices are:
• Separately or together – they can make decisions on their own or with the other attorneys (jointly and severally).
• Together – they have to agree on every decision (jointly)
You can specify how your attorneys should make different types of decisions in your LPA.
What happens if my attorney is no longer able to carry out their duties? It's a good idea to choose some replacement attorneys in your LPA.
Replacement attorneys can only start to act for you if the main attorneys can no longer fulfil the role or want to step down.
If you've lost capacity, and your attorneys can no longer act for you and there are no replacement attorneys, OPG will cancel your LPA. This might mean that someone would have to apply to the Court of Protection to become your deputy.
How do you tell if someone has mental capacity? A person lacks capacity if a problem with their mind or brain stops them making decisions when they need to be made.
The law says that when someone who lacks capacity cannot do one or more of these four things:
• Understand the information needed to make a particular decision.
• Hold on to that information long enough to make that decision.
• Use or weigh up the information to make that decision.
• Communicate their decision.
Do I need proof that I have mental capacity now? Yes. A “certificate provider” signs the LPA to prove that you understand what it means.
This should be someone you have known for at least two years, such as a:
• Friend.
• Doctor.
• Lawyer or accountant.
• Social worker.
• Priest, vicar, or Iman.
•
Cost of LPAThe full fee is £82.00 for each type of LPA (as of October 2021) Exemption may apply.
The full fee for Office copy/certified copy of an LPA is £35.00 for each LPA, no exemptions apply.
You may be able to pay a reduced fee (remission) or not pay a fee at all (exemption). You (or the person applying on your behalf) will need to send proof of your income.
Reduced fee (remission)
If your total yearly (gross annual) income before tax is less than £12,000, you may be able to get a 50% reduction of the fee.
Your income includes:
• Your salary.
• Non-means tested benefits.
• Pensions.
• Pensions Saving Credit.
• Interest from savings and investments.
• Property rentals.
• Universal Credit.
You will need to send proof of your gross annual income. This might be:
• A P60 or three months consecutive wage slips from your current job.
• An official letter or notice from the payer of non-means-tested benefits and pensions.
• Statement or vouchers showing gross income for interest from capital, stocks, shares or bonds.
Are you self-employed? You will need to send either:
• Your most recent self-assessment tax return and HMRC tax calculation.
• An audited account certified by a qualified accountant.
If you get Universal Credit, you will need to send copies of letters showing you got it at the time you applied to register your LPA.
OPG will not accept bank statements as evidence.
No Fee (exemption)
You may not have to pay a fee at all if you get any of these benefits:
• Guarantee Credit Element of State Pension Credit.
• Income Support.
• Income-based Employment and Support Allowance.
• Jobseeker's Allowance.
• Housing Benefit.
• Local Housing Allowance.
• Council Tax Reduction/Support (also know by other names, not the 25% single persons discount or the class U exemption).
• Working Tax Credit and at least one of: Child Tax Credit, Disability Element of Working Tax Credit, Severe Disability Element of Working Tax redit.
You will have to send copies of letters from your benefit provider showing you got these benefits at the time you apply to register.
You will have to pay the full fee if you :
• Get these benefits: Disability Living Allowance, Invalidity Benefits, Personal Independence Payment.
• Have been awarded personal injury damages of more than £16,000, which was ignored when you were assessed for benefits.
Get help with application forms and fees: call the OPG helpline on 0300 456 0300.
[
size=12pt] Do I need to instruct a solicitor? [/size]Many people don't need any legal help to fill in the LPA application form. Read the forms and guidance first to decide if you or your attorney is able to fill them in and apply to register the LPA.
However, an LPA is an important legal document. You might want to get legal advice from someone who has experience of dealing with LPAs and working with older people, their families and cares. There are lightly to be costs involved.
How do I apply for an LPA? The donor, their attorney or solicitor can apply on line:
www.lastingpowerofattorney.service.gov.ukIf the donor or their attorney doesn't want to apply on line, they can fill in the forms by hand and send them by post.
Ask OPG to send the LPA forms to you.
0300 456 0300
Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH
What happens after the online application or posted forms have been submitted? It takes OPG up to 10mweeks to register an LPA. The LPA is valid as soon as OPG has registered it.
OPG will confirm registration with you by post or email (depending on which you prefer). OPG will also contact your attorneys to let them know the LPA has been registered.
You should keep a copy of the registered LPA.
What is an enduring power of Attorney (EPA)? LPAs were introduced in 2007 and replaced enduring power of attorney (EPA).
EPAs give someone legal authorisation to act on your behalf in a legal or business matter.
If you have an EPA and do not want to change it, you don't need to apply for an LPA.
However, you will need to apply for an LPA if you want to change an existing EPA.
To know more?
LPA's are covered by a piece of law called the Mental Capacity Act. The Act's Code of Practice (available at
www.gov.uk/opg/mca-code ) explains the law clearly.
For more background information, also visit
www.scie.ork.uk/mca-directory .
