What is a Lasting Power of Attorney?

Many people find the legal concept of Power of Attorney daunting, particularly when it comes up during urgent discussions about a loved one’s health and wellbeing. To others, it’s just one aspect of forward planning for possible life events.

However you feel about it, arranging Power of Attorney can make decisions about finances, property and health much more straightforward in the future. Your chosen advocate should only ever make a choice for you if you are unable to make that decision when it needs to be taken.

This guide can help if you are considering the best way to start the legal process, ensuring Power of Attorney, and what to be aware of along the way.

 

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more people as attorneys who can be called upon to help with your affairs if you become mentally incapacitated as a result of severe illness or accident.

In October of 2017, the LPA framework replaced the previous Enduring Power of Attorney (EPA) framework in England, Wales and Scotland. EPAs are still valid legal documents, but an EPA must be registered when the person loses capacity. However, the EPA framework still exists in Northern Ireland.

If someone can’t manage their finances or make decisions any more, they will need someone else to do this on their behalf. This might be because of dementia, a stroke, a brain injury, a coma or another condition that affects mental capacity.

However, an LPA can (and should, if possible) be set up before the person is unable to manage their finances or make decisions any more. They can choose that Power of Attorney only begins when they have lost mental capacity.

If someone loses mental capacity without a Lasting Power of Attorney in place, then a ‘deputy’ in England or Wales, a ‘controller’ in Northern Ireland’ or a ‘Guardian’ in Scotland must be appointed by a Court to make decisions on their behalf, which is a more difficult process. That’s why it’s really important to have the conversation about Power of Attorney early, while all parties can agree to it.

Everyone should consider a Lasting Power of Attorney, as illness and accidents can strike at any age. You only need to be over 18 to set one up.

There are two categories of Power of Attorney:

Before you start the Power of Attorney process, which involves submitting a Power of Attorney form, you’ll need to decide whether to hire a solicitor or go it alone. If you’re at all unsure, it’s a good idea to talk to a solicitor beforehand.

Doing the paperwork yourself may save on legal fees, but you’ll be responsible for completing the documents to a high standard and any errors could cause issues in the future.

You can apply online for power of attorney on GOV.UK:

Once completed by you or your solicitor, the Power of Attorney documents will be ready for legal registration, which usually takes about eight weeks.

When creating an LPA (Lasting Power of Attorney) in England and Wales, you can grant powers over two general areas of your life- health and welfare and Property and Finance.

However, in Northern Ireland you can apply for an Enduring Power of Attorney (EPA) which will give your nominated Attorney power over your financial affairs.

In terms of specifying preferences for healthcare those in Northern Ireland are advised to create a living will (Also known as an Advance Decision). You can read more about Advance Decisions here.

It is always better to make your advance decision in writing, even if it does not relate to refusing life-sustaining treatment, as this will improve the chance that medical professionals will be aware of and respect your decision.

If your advance decision relates to refusing life-sustaining treatment it must always be in writing, and include a statement that it is to apply to the treatment even if your life is at risk. The advance decision also needs to be signed by you and a witness. If you are speaking with a client who wishes to complete a form they can access a free template form here on the Alzheimer’s Society website.

You can use an EPA without registering it while you still have mental capacity. But you must register it with the Office of Care and Protection as soon as your mental capacity starts to decline. The registration fee is £165.

The cost of registering a Lasting Power of Attorney differs across the UK and is charged per document, so you would need to pay for two registrations to cover finance and property, as well as health and wellbeing.

Per document, here are the costs within each country:

There may be additional legal fees for preparing the documents.

The registration fee is reduced for people earning less than £12,000 per year and exemptions may be available if you receive certain benefits such as Income Support. Find out more about eligibility for reductions and exemptions.