Lasting Power of Attorney (LPA) is a legal document that lets you appoint someone you trust as an ‘attorney’ to make decisions on your behalf. This document can be drawn up at any time while you have capacity (are still mentally capable).
You must register your LPA with the Office of the Public Guardian if your document is to have a legal standing. A registered LPA can be used at any time, whether you have the mental ability to act for yourself or not.
You can create two types of LPA:
- Property and Affairs LPA
- Personal Welfare LPA
Property and Affairs LPA
A Property and Affairs LPA allows you to choose someone to make decisions about how to spend your money. This can include decisions on the way your property and affairs are managed.
Personal Welfare LPA
A Personal Welfare LPA allows you to choose someone to make decisions about your healthcare and welfare. This includes decisions to refuse or consent to treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when the LPA is registered.
Who should you appoint?
When appointing LPA, you should consider:
- how well the person looks after their own financial affairs
- how well you know the person
- whether you can trust them to use your money to meet your needs and make decisions in your interests
- how happy they will be to take on the role
It may be a good idea to appoint more than one person to help prevent abuse of the responsibility.
You can use a solicitor to set up an LPA or the online form on the Office of the Public Guardian website.
Before you appoint someone to be your LPA you need to make sure they have been told about it. This process of being told is called ‘receiving notification’.
Enduring power of Attorney – Pre October 2007
EPA was replaced by lasting power of attorney on 1 October 2007. A person given power under an EPA before 1 October 2007 can still use it and apply to have it registered. There are times when the EPA has a responsibility to use this power. This might happen when you are becoming or have become mentally incapable of making financial decisions for yourself.
If you have an unregistered EPA and still have the capacity to make decisions yourself, you can make a Personal Welfare LPA to run alongside it.
Cancelling Power of Attorney
Lasting power of attorney (LPA)
You can cancel your LPA if you have the mental capacity to do so. If there is a dispute about whether your LPA has been cancelled, the Court of Protection has the authority to make a decision.
A Property and Affairs LPA is revoked if you or your attorney becomes bankrupt; bankruptcy does not end a Personal Welfare LPA.
Enduring power of attorney (EPA)
You can cancel an unregistered EPA if you have the mental capacity to do so, without applying to the Court of Protection. To cancel a registered EPA, you must apply to the Court of Protection.
General Power of Attorney (GPA)
A general power of attorney is used when you want someone to act on your behalf for only a set period of time (e.g. if you are going abroad) or for specific events, when your age and health make it unlikely that you could lose capacity during the duration of the GPA. It applies only to your property and affairs and it cannot be used to authorise someone to make decisions concerning your personal welfare. Unlike the Lasting Power of Attorney, it ceases to take effect if you become mentally incapable, and it doesn’t have to be registered.
There are also three types of power of attorney in Scotland:
A Continuing Power of Attorney (CPA)
This Scottish power of attorney allows you to appoint someone to take long-term control of your interests, particularly if you’re elderly or in poor health. A CPA can be used by an Attorney both before and after you become mentally incapable but it must be registered with the Office of the Public Guardian while you’re still mentally capable.
A Welfare Power of Attorney (WPA)
This Scottish power of attorney allows you to appoint someone to make decisions about your welfare when you’re incapable of doing so yourself. For the WPA to be valid, it must be registered with the Office of the Public Guardian while you’re still mentally capable.
Combined (welfare and continuing power of attorney)
Combined powers of attorney include both welfare and financial powers. The financial powers can be effective immediately. They will remain in place even if the granter subsequently becomes incapable of managing their own affairs. The welfare powers can be used only if the granter has become incapable of managing their own welfare.
For those with mental capacity the choices are:
An Agent or Appointee
This relates solely for state benefits and tax credits.
An agent can be nominated to collect state benefits on behalf of the claimant, even on a temporary basis. As most benefits are now paid into bank accounts a third-party mandate or bank letter is more often used.
An appointee will be able to deal with the application of benefits for the claimant and will have wider powers as they will deal with the application of benefits on behalf of the claimant. This would also include dealing with any queries and ensuring the money is used for the claimant’s welfare.
Third-Party Mandate or Bank letter
If the only requirement is for someone else to operate a bank account then a letter to the bank may suffice, although most banks require the completion of their specific standard form or third party mandate. This would continue until revoked or until death. However, if someone is needed to act in a broader capacity it may be more appropriate to draw up a power of Attorney. See above
For those who lack mental capacity, the power of attorney applicable will be either:
- An enduring power of attorney if made before 1st October 2007
- A lasting power of attorney if made from 1st October 2007
It is the attorney’s responsibility to act in the best interests of the donor.
For further information on where to go for help click on the web links below.
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