What is an LPA?
An LPA is a legal document that enables you (known as the donor) to appoint one or more trusted people (known as attorneys) to manage your affairs and make decisions on your behalf in the event that you lose mental capacity. There are two types of LPA:
LPA for financial decisions.
This type of LPA allows you to appoint one or more attorneys to make decisions about your property and financial affairs including operating bank and building society accounts, the buying and selling of your house and other assets, dealing with your tax affairs, claiming and receiving benefits and pension payments, and paying household, care and other bills.
LPA for health and welfare decisions
This type of LPA allows you to appoint one or more attorneys to make decisions relating to things such as where you should live and what care you should receive, consenting to or refusing medical treatment on your behalf, and day-to-day matters such as your diet, clothes and daily routine. It is also possible to grant power to your attorney(s) to make decisions about accepting or refusing life-sustaining medical treatment.
Clients will choose to do one type, or both types. There is no wrong approach, just what is right for your circumstances.
What is the process for the creation of an LPA?
An LPA has to be completed and signed by you, a certificate provider who confirms you understand the document, and any attorneys.
Once created, an LPA has to be registered with the Office of the Public Guardian (OPG) before it can be used.
Do I need a solicitor to create an LPA?
The short answer is no. The forms are available online so you can create the documents yourself, and you can liaise directly with the OPG regarding registration. There is no requirement to involve a solicitor, unless you wish to do so.
Why might I want to involve a solicitor when creating my LPA?
If you create the documents yourself, you will not have the benefit of any legal advice regarding these very powerful documents. Remember – you are creating documents that will allow someone else to deal with your finances, and also your health and welfare decisions. It is so important that you understand these documents and that they are created exactly to suit your purposes.
The information available online from the OPG is not legal advice – it is procedural information about how to create the documents. It does not help you understand:
- how LPAs will work in practice
- how to complete the documents to ensure that they are flexible and capable of lasting your entire lifetime
- how to complete the documents to ensure they have the right level of protection for you
- how to include guidance and restrictions that are acceptable to the OPG for registration and workable in practice
- what the limitations of your attorneys’ powers are
- what duties and responsibilities your attorneys have
It is important that the donor has the opportunity to obtain independent legal advice. If a family member or friend completes the documents for them and just asks them to sign, the donor does not have the opportunity to craft the documents in the way they want, nor be able to have an independent conversation with a third party who can discuss any concerns they may have about the arrangement.
In order to create an LPA, it is necessary to have sufficient mental capacity to create the documentation. This requires satisfaction of a specific legal test. Solicitors will be familiar with this test, and also be able to obtain medical support and assessments from industry experts where capacity is an issue.
It is important to note that a diagnosis of a capacity issue does not in itself remove a person’s ability to make a power of attorney. The issue of capacity is decision-specific, and a solicitor will be able to lead you through the legal maze.
Completion of the forms
The forms are long and there are stringent rules about their completion. It is very common for them to be rejected by the OPG for relatively simple errors. For instance, if a witness does not put their full name and instead puts a middle initial, that could be enough to cause difficulties at registration – and even mean the whole process has to begin again.
Solicitors complete the documentation and registration process frequently and will be experienced in spotting errors before they are submitted to the OPG. This avoids unnecessary delays and the need to recomplete the documentation.
Independent third party
Powers of attorney are extremely powerful documents and are sometimes used to abuse the donor. Financial abuse of the vulnerable is a sad fact of life.
The benefit of a solicitor being involved in the process is two-fold:
- It allows the donor the opportunity to talk through the risks and dangers of the documents without the attorney being present, allows the donor to ask questions about how the documents can be drafted to reduce risk of financial abuse, and seek help if they have concerns or feel under pressure.
- If the relationship between the donor and the attorney is not abusive and the LPA is created, the involvement of the solicitor in the process is useful evidence if the document is challenged in future by someone else. The fact that the donor had the opportunity to speak with a solicitor alone, is useful and compelling evidence, and helps to create a robust and defendable document.
If you are considering making a new LPA, or would like to discuss your existing LPA, or EPA, please give us a call on 0118 40 50 131 or email@example.com and we will be happy to help.