Power of Attorney UK: A Complete Guide to Setting Up an LPA

A Lasting Power of Attorney (LPA) is a legal document that lets you appoint one or more people (known as attorneys) to make decisions on your behalf. This could be about your property and money, or your health and welfare, and it comes into effect if you lose the mental capacity to make those decisions yourself, or no longer want to.

Setting up an LPA is a crucial step in planning for your future. It provides peace of mind, knowing that your affairs will be managed by people you trust, should the unexpected happen. Without an LPA, if you lose mental capacity, your loved ones may need to apply to the Court of Protection to gain legal authority to manage your finances, which can be an expensive, lengthy, and stressful process.

Why is a Power of Attorney Important?

Life is unpredictable. Accidents, illnesses like dementia, or other unforeseen events can lead to a loss of mental capacity. If this happens, and you don't have an LPA in place, your family may face significant challenges:

• Access to Funds: They might struggle to access your bank accounts to pay bills or manage your property.
• Healthcare Decisions: Important decisions about your medical treatment could be made without your preferred input.
• Family Disputes: Without clear instructions, disagreements can arise among family members about what's best for you.
• Court Process: Someone would need to apply to the Court of Protection to become your 'deputy', which is often more complex, costly, and less flexible than an LPA.

An LPA allows you to maintain control over who makes decisions for you and what those decisions might be, even when you can no longer express them yourself.

Types of Lasting Power of Attorney (LPA)

In the UK, there are two types of Lasting Power of Attorney:

1. Property and Financial Affairs LPA

This type of LPA gives your attorney the authority to make decisions about your money and property. This can include:

• Managing your bank and savings accounts.
• Paying your bills.
• Collecting your benefits or pension.
• Buying or selling property.
• Making investments on your behalf.

Crucially, you can choose whether this LPA can be used as soon as it's registered, or only when you lose mental capacity. Many people opt for it to be usable while they still have capacity, which can be helpful if you become physically unable to manage your affairs, even if your mental capacity is intact.

2. Health and Welfare LPA

This LPA covers decisions about your health and personal welfare. Your attorney can only use this LPA when you have lost mental capacity. Decisions they can make include:

• Your daily routine (e.g., washing, dressing, eating).
• Medical care, including consenting to or refusing specific treatments.
• Where you live (e.g., moving into a care home).
• Who has contact with you.

It's important to note that this LPA can give your attorney the power to accept or refuse life-sustaining treatment, but only if you explicitly grant them this authority in the document.

Who Can Be an Attorney?

Your attorney (or attorneys) must be:

• 18 years old or over.
• Mentally capable of making decisions.

They are typically family members (such as a spouse, partner, or adult children),but they can also be friends or a professional, such as a solicitor. You can appoint one attorney or several. If you appoint more than one, you'll need to decide how they make decisions:

• Jointly: All attorneys must agree on every decision. If one attorney cannot or will not act, the LPA fails.
• Jointly and Severally: Attorneys can make decisions together or independently. If one attorney cannot act, the others can continue.
• Jointly for Some Decisions, Jointly and Severally for Others: A more flexible approach, but can be complex to draft.

It's often recommended to appoint attorneys jointly and severally, or to appoint replacement attorneys, to avoid potential issues if one attorney is unable to act.

The LPA Application Process: Step-by-Step

Setting up an LPA involves several stages. You can do this yourself, or you can get help from a solicitor.

Step 1: Choose Your Attorneys and Replacement Attorneys

Carefully select who you trust to make important decisions for you. Discuss your wishes with them beforehand to ensure they understand and are willing to take on the responsibility. Consider appointing replacement attorneys in case your primary choices are unable to act.

Step 2: Decide What Powers to Grant

Think about the specific decisions you want your attorneys to make. For the Health and Welfare LPA, consider whether you want them to make decisions about life-sustaining treatment. For the Property and Financial Affairs LPA, decide if you want them to be able to act while you still have mental capacity.

Step 3: Complete the LPA Forms

You can get the official LPA forms from the government's website (gov.uk). There are separate forms for Property and Financial Affairs and Health and Welfare. The forms require detailed information, including:

• Your details (the 'donor').
• Your attorney's details.
• Details of any replacement attorneys.
• Instructions and preferences you want your, attorneys to follow.
• A 'certificate provider' to confirm you understand the document.
• Witnesses.

Step 4: Appoint Your Certificate Provider

A certificate provider must sign the LPA forms. Their role is to confirm that:

• You understand the purpose of the LPA.
• You are not under any undue pressure to make the LPA.
• No fraud is involved.

This person must be independent – they cannot be an attorney, a replacement attorney, or a family member of an attorney. Often, a solicitor or a doctor acts as a certificate provider.

Step 5: Sign and Witness the LPA

Both you (the donor) and your attorneys must sign the LPA forms. Your signature must be witnessed. The witness cannot be an attorney or a replacement attorney in the same LPA.

The order of signatures matters:

1. You (the donor) and your witness.
2. The certificate provider.
3. Your attorneys and their witnesses.

Step 6: Register the LPA with the Office of the Public Guardian (OPG)

An LPA is not legally valid until it is registered with the Office of the Public Guardian (OPG). You, an attorney, or someone else authorised by you can apply to register it.

There is a fee for registration. As of 2024, the fee is £82 per LPA. If you have a low income or receive certain benefits, you might be eligible for a reduction or exemption from this fee.

Once the OPG receives your application, they will check the forms. There is a waiting period (currently 6 to 10 weeks) during which anyone can object to the registration. If all is in order, the OPG will register your LPA and send you and your attorneys a stamped, official copy.

What Does It Cost to Set Up an LPA?

The costs associated with setting up an LPA can vary:

1. OPG Registration Fee

• Currently £82 per LPA (meaning £164 for both a Property & Financial Affairs and a Health & Welfare LPA).
• Fee reductions or exemptions are available for those on low incomes or receiving certain benefits.

2. Solicitor's Fees (Optional)

• If you choose to use a solicitor, their fees will be in addition to the OPG fee.
• These fees can range from approximately £300 to £600+ plus VAT per LPA, depending on the complexity and the firm.
• Some solicitors offer a reduced rate if you set up both types of LPA at the same time.

DIY vs. Solicitor

Feature	DIY Approach	Solicitor Approach
Cost	OPG registration fees (£82 per LPA) only	OPG fees + solicitor fees (£300-£600+ per LPA)
Complexity	Requires careful reading and understanding	Solicitor handles complexities
Accuracy	Risk of errors or omissions leading to delays	Lower risk of errors; professional checking
Time	Can take longer due to learning curve and checks	Potentially quicker due to expertise
Advice	No independent legal advice	Professional legal advice and drafting expertise
Peace of Mind	May cause stress if unsure	Greater peace of mind that it's done correctly
Disputes	Higher risk of challenges if not drafted well	Lower risk of challenges; clear drafting

While doing it yourself can save money, engaging a solicitor ensures the LPA is correctly drafted, accurately reflects your wishes, and reduces the risk of future challenges or delays. They can also provide valuable advice on specific clauses or instructions.

When Does a Power of Attorney Come into Effect?

• Property and Financial Affairs LPA: Can be used as soon as it's registered with the OPG, with your permission, or when you lose mental capacity.
• Health and Welfare LPA: Can only be used when you have lost mental capacity. It cannot be used while you are still able to make your own health and welfare decisions.

Both types of LPA must be registered with the OPG before they can be used.

What is Mental Capacity?

Under the Mental Capacity Act 2005, a person is assumed to have mental capacity unless it's proven otherwise. A person lacks capacity if they are unable to make a specific decision when they need to, because of an impairment or disturbance in the functioning of their mind or brain. This could be due to conditions like:

• Dementia.
• Advanced stroke.
• Severe learning disabilities.
• Brain injury.
• Mental health conditions.

The test for mental capacity is decision-specific and time-specific. It's about a person's ability to:

1. Understand the information relevant to a decision.
2. Retain that information.
3. Use or weigh that information as part of the process of making the decision.
4. Communicate their decision.

It's important that when you make an LPA, you have the mental capacity to understand what you are doing and the implications of the document.

Safeguarding and Protection

The LPA system has safeguards to protect you:

• Certificate Provider: Ensures you understand what you're signing and are not being pressured.
• Registration with OPG: The OPG checks the forms and handles objections.
• Supervision: The OPG has powers to investigate complaints about attorneys and can remove them if they act improperly.
• Instructions and Preferences: You can include specific instructions in your LPA to guide your attorneys and ensure your wishes are followed.

Reviewing and Revoking an LPA

It's a good idea to review your LPA every few years, or if your circumstances change significantly (e.g., divorce, death of an attorney, new family members). If you wish to change or cancel an LPA, you can do so, provided you still have mental capacity. This involves formally 'revoking' the existing LPA.

If you lose mental capacity but don't have an LPA

If you lose mental capacity without an LPA in place, your family or friends would need to apply to the Court of Protection to become 'deputies'. A deputy has similar powers to an attorney but is appointed by the court. This process is generally:

• More Expensive: Court fees are higher, and legal costs for applying for deputyship can be significant.
• More Time-Consuming: The application process can take many months.
• Less Flexible: Deputies are closely supervised by the OPG and have less discretion than attorneys appointed through an LPA. They must submit annual accounts to the OPG.
• Lack of Choice: You do not get to choose who your deputy is; the court decides based on who is best suited.

This highlights why proactive planning with an LPA is so beneficial.

Key Takeaways

• A Lasting Power of Attorney (LPA) allows you to choose someone to make decisions for you if you lose mental capacity.
• There are two types: Property and Financial Affairs, and Health and Welfare.
• Both types must be registered with the Office of the Public Guardian (OPG) to be legally valid.
• You can set up an LPA yourself or use a solicitor, with solicitors providing expert advice but at an additional cost.\
• Planning ahead with an LPA gives you control and peace of mind, avoiding the need for your family to apply to the Court of Protection.
• Regularly review your LPA to ensure it still reflects your wishes and circumstances.

Setting up an LPA is a powerful way to ensure your future is in trusted hands. Don't put off this vital step in your personal financial planning.