A Lasting Power of Attorney (LPA) is an important legal document that every adult should have in place. However, according to statistics from the Office of the Public Guardian, less than 1% of the population has an LPA*. In a previous blog, we also shared how financial expert and consumer champion Martin Lewis used an episode of his ITV show to encourage UK householders to invest in making an LPA. In this article, our Private Client team provides some further insight on the some of the steps you can take to set up your LPA and the importance of doing so.
What are the Main Steps and Considerations When Setting Up Your LPA?
1. Choosing the Correct Lasting Power of Attorney Documents
There are two types of Lasting Power of Attorney, which are:
- LPA for property and financial affairs– these documents allow the named attorney(s) to manage your financial and property matters. You can be specific about what this includes, such as managing bank or building society accounts, paying bills, collecting a pension or benefits if necessary, and, if need be, the authority to deal with the sale of your home.
- LPA for health and welfare– this type of LPA allows the named attorney(s) to manage your health and personal welfare issues, including your day-to-day care and medical treatment decisions if needed.
You can choose who should make financial decisions and who should make health and care decisions for you – and this doesn’t necessarily need to be the same person. Another important factor to consider is when each of these LPAs can come into effect. For example, an LPA for Health and Welfare will only come into effect once you cannot make decisions yourself. However, a Property and Financial Affairs LPA can come into force whenever you choose (although you should leave enough time for the registration process). With the correct permission, having a temporary LPA in place for Property and Financial Affairs allows an attorney to act even while you have mental capacity. For example, if you are on holiday, physically unable to get out and about, or if you will be in hospital for an extended period, this form of LPA could be very useful.
2. Applying for a Power of Attorney – Access an Application Pack
You can apply online for a power of attorney: gov.uk/making a lasting power of attorney, or you can contact the Office of the Public Guardian for an application pack:
- by post at the Office of the Public Guardian, PO Box 16185, Birmingham B2 2WH
- by phone on 0300 456 0300 – lines are open Monday to Friday, 9.30am to 5pm (Wednesday, 10am to 5pm)
- by email – customerservices@publicguardian.gov.uk
3. Register The LPA
Once you have created a valid LPA, you must register it with The Office of the Public Guardian (OPG); otherwise, your attorneys will not be able to act on your behalf. It is worth noting that registration can sometimes take around two months and sometimes longer due to current processing delays, so it is always advisable to put the required LPA in before a sudden emergency arises.
4. Understand Who Can Register an LPA And When
It is important to remember that an LPA can only be granted when the person creating the LPA (donor) has full mental capacity. You will not be able to put an LPA in place if the donor already lacks the capacity to make their own decisions. Under these circumstances, an application will need to be made for a Court of Protection Deputyship, which can be a costly, complex, and lengthy process. It can take around four to six months for the Court of Protection to appoint a deputy. However, this can take much longer if a dispute occurs or the court requires additional information. There is also no guarantee who will be appointed as your ‘deputy’, and it could be someone who you would not have chosen for yourself.
5. Consider Legal Advice – Do you need a solicitor to make an LPA?
Making an LPA without a solicitor or using DIY online alternatives is possible. However, an LPA is a powerful legal document and seeking legal advice can ensure the registration process is as smooth as possible and completed lawfully. There is also the danger that errors are made without appropriate professional advice from someone who understands this complex area of law. Incorrectly or poorly completed forms can mean that the application is rejected (and you would lose the cost of the application fee) or could leave it open to a legal challenge or family dispute. If an error is made when completing these forms, there is also the chance your attorney may not be allowed to use their powers when needed.
These are just some of the issues that can regularly go wrong. A regulated and experienced solicitor will be able to guide you through the process, complete all the numerous forms, and ensure that there is no risk of abuse of the power given. A qualified advisor can reassure you that the whole process is carried out legally by a regulated practitioner who understands how to protect your best interests. A solicitor with experience in this area of law can also ensure that your attorneys understand their obligations, and that the process follows all the regulations under the Mental Capacity Act.
Solicitors for Lasting Powers of Attorney Lincolnshire and East Yorkshire
Deciding to create an LPA may seem daunting, but our team of dedicated Lasting Power of Attorney solicitors at Bridge McFarland LLP will do all they can to make you feel at ease.
Our experienced team will advise you on the best and most appropriate LPA, depending on whether you want it for financial affairs or health and welfare. We can also help you register your LPA with the Office of the Public Guardian and provide specialist guidance when you need a solicitor to act as one of your attorneys.
To speak to us today regarding a Power of Attorney, please call 0800 987 8800.
For more information about Powers of Attorney and how Bridge McFarland can assist you, click here.
Sources and useful information:
*Lasting powers of attorney – the importance of making the right choice
Money Saving Expert Martin Lewis Urges Individuals to Create LPAs
