Appointing Attorneys
Normally 1-4 attorneys can be appointed but it is
important for the donor to ensure the attorneys
are someone they know and trust to act in their
best interests. Attorneys can act either:-
• Jointly (attorneys must agree unanimously on
every decision);
• Jointly and severally (attorneys can make
decisions on their own or together); or
• Jointly for some and jointly and severally
for other decisions (attorneys must agree
unanimously on some decisions but can make
others on their own).
Capacity
Before an LPA is made, it is imperative that the
donor is over 18 and has mental capacity. This
means they must understand:
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What an LPA is
Who they want to make it
Who they are appointing as attorney
How they have decided the attorneys; and
That they understand what powers the attorney
will have.
If the donor cannot decide for himself in relation to
the matter due to an impairment of or disturbance
in the functioning of his mind or brain, such as
late set dementia, it is likely they will not have the
required capacity.
Essentially, the donor should be assessed on
whether they have the ability to make a particular
decision at a particular time. If unsure, a GP or
independent mental capacity advocate can assess
the donor’s capacity.
Registration
Once the forms have been submitted to the OPG,
they can take up to 16 weeks to be registered.
F R E Q UENTLY ASKED QUEST IONS
Can I do an LPA if my father has lost capacity?
No. An LPA can only be made by someone who has
mental capacity. If a person loses mental capacity
and has no LPA in place, an application would need
to be made to the Court of Protection who will
appoint a deputy to act in the donor’s best interests
(this is known as Deputyship Order). Anyone over
the age of 18 can apply to the Court of Protection
to be your Deputy to make financial decisions on
the donor’s behalf. This can be a lengthy (normally
6 month timeframe) and very expensive process
with the added risk that the application may be
refused by the OPG or that no provision will be
made for Health and Welfare.
Do I have to register my LPA straight away?
To be effective, an LPA must be registered with the
Office of the Public Guardian. There is a registration
fee of £82 per document and is means tested so if
the donor is on a low income or benefits, they may
be eligible for remission of those fees.
It is better to have the LPA registered as soon
as possible. The principle reason for this is that if
the LPA is registered later on or where the donor
starts to lose capacity, if the form is returned by
the OPG for any reason (given the long turnaround
time), the donor may no longer have capacity and
therefore cannot sign the form. This will mean the
LPA cannot be put in place for the donor anymore
and an application for deputyship will need to
be made. On top of that, imagine a loved one
needs to go into a care home as their health has
deteriorated but you are unable to access their
funds to pay for care home fees until the OPG
approve. Is the added stress worth it?
Once my LPA has been registered, I can’t
change it.
Wrong. An LPA that has been registered can be
revoked at any time, providing the donor still has
mental capacity. This does mean a new LPA will
need to be made and a further £82 registration
fee paid.
Can I get an LPA for my business?
Yes. Whilst there is no such thing as a “business
LPA,” you can use the Property and Financial LPA
to ensure attorneys can continue to make decisions
about the continuity of your business, paying
staff, entering into contracts etc. This means
if you are a business owner you could have two
Property & Financial Affairs LPAs, one dealing with
your personal finances and the other appointing
attorneys to deal with your business interests.
Capacity can be lost at any time and
could be due to either an accident, a
stroke or a deteriorating condition so
please don’t wait until it’s too late.
If you would like to find out more
information regarding making a Lasting
Power of Attorney, please contact one of
our members.
the society of will writers
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