Elderly LPA property guide

What is a Lasting Power of Attorney (LPA)?

An LPA is an important legal document allowing you (the “donor”) to choose someone (the “attorney”) you trust to make decisions about things such as your finance and property on your behalf in the future, when you may lack the mental capacity to make those decisions yourself.

An LPA can only be used when it has been correctly completed, signed and witnessed and then registered with the Office of the Public Guardian (OPG).

You do not need to live in England and Wales to make a personal welfare LPA, but you will need to be in England or Wales at the time your attorney needs to use it.

"An LPA can only be used when it has been correctly completed, signed and witnessed and then registered"

Please note: An LPA made in England and Wales will not be legally binding for use in other countries including Scotland, the Republic of Ireland or Northern Ireland. It will be up to institutions (such as hospitals) in other countries to decide whether to recognise the LPA.

How do LPAs safeguard my welfare, property and affairs?

There are two types of LPA:

  1. A Personal Welfare LPA allows your attorney to make decisions on your behalf regarding your personal welfare, including whether to consent or not to medical treatment on your behalf as well as deciding where you live. It does not allow your attorney(s) to make decisions regarding your property and affairs.
  2. A Property and Affairs LPA allows your attorney(s) to make decisions on your behalf regarding your property and affairs, including paying your bills, collecting your benefits or other income, and selling your house subject to any restrictions and conditions. It does not allow your attorney(s) to make decisions regarding your personal welfare.

You can appoint a property and affairs attorney to manage your finances and property while you still have capacity - as well as when you lack capacity. For example, you may want to give someone the power to pay your bills or collect your benefits or other income. There may be many reasons for this: you might just find it difficult to get about or to talk on the telephone, or you might be out of the country for long periods.

What is a Property and Affairs Attorney

This attorney will be able to make exactly the same kind of decisions you can make now about your money and property. Thus, unless you specify restrictions or conditions, once the LPA is registered, your attorney(s) will be able to do anything that you can do now in relation to your property and affairs, such as:

  • opening, closing or operating any account containing your money;
  • claiming and receiving on your behalf, for example, all pensions, benefits, allowances, services, financial contributions, repayments and rebates to which you may be entitled;
  • making all tax returns and adjusting and settling any claim for tax;

"This attorney will be able to make exactly the same kind of decisions you can make now regarding your money and property"

  • paying your household expenses;
  • buying, leasing, selling and otherwise dealing with any interest in property of any kind or description;
  • paying for private medical care and residential care costs;
  • making gifts on your behalf, including any limits on the size of such gifts or the people that receive them, subject to any restrictions;
  • purchasing out of your income or capital a vehicle or any other equipment which may be required for your benefit;
  • implementing tax planning or similar arrangements (this may need an application to the Court of Protection).

(Please note this list is not exhaustive.)

How do I control my lasting power attorney(s)?

You can include restrictions and/or conditions in your LPA which specify the decisions you want your attorney(s) to make.

You can state that your attorney should not act for you until you lack capacity. However, you must also say how the attorney is to show that you lack mental capacity - for example, that your attorney is not to register your LPA until s/he is able to obtain medical evidence that you have lost capacity. If you do not specify this, your attorney will be able to act as soon as the LPA is registered.

When making your LPA, you must be satisfied that you have given your attorney(s) the right powers to make the decisions you want taken, should you lack the capacity to make them yourself. Attorney(s) must follow any restrictions or conditions you have included in your LPA, though you may also include broader guidance on your views on particular matters. This will not be binding on your attorney(s) but may help them when making decisions in your best interests.

Remember that where you still have the capacity to be involved in decision-making, your attorney/s must consult you before making a decision on your behalf. They may need to access personal information about you from, say, a doctor, a bank or solicitor, to help decide what is in your best interests. If acting within the powers you have given them, they are entitled to ask for this information in the same way you would do, subject to limits - where possible, they should only ask for information that will help them make a decision on your behalf.

"Where you still have the capacity to be involved in decision-making, your attorney/s must consult you before making a decision"

You may want to specify in your LPA that your attorney must act in a particular way, such as continuing charitable donations on your behalf.

You may also want to restrict the powers of your attorney by specifying that s/he cannot make decisions about your investment portfolio because you have given this responsibility to someone else.

Think carefully about how you word any LPA restrictions or conditions. They should be clear and easy to put into practice so that anyone dealing with your financial and property affairs, such as banks, building societies and solicitors, can follow them effectively in the future. If they are too complex or impractical, the Office of the Public Guardian may need to refer your LPA to the Court of Protection, leading to possible cancellation of that restriction or condition.

Remember that restrictions and conditions are there for your attorney(s) to follow when making decisions on your behalf. They should not act as statements of your intentions for others to follow.

If you are unhappy with your attorney’s actions, you can revoke your LPA (if you still have the capacity to do so) but you need to advise the Office of the Public Guardian so that the register can be updated.

"Remember that restrictions and conditions are there for your attorney(s) to follow when making decisions on your behalf"

Choosing your attorney

It is important to choose someone you know well and can trust to make decisions in your best interests. They should be happy to take on the role.

You can choose to appoint a family member, friend or anyone willing to act for you, providing they are aged over 18. If you choose your spouse or civil partner and yet your marriage or civil partnership is dissolved or annulled in the future, the LPA will cease. That is, unless you have stated otherwise in the LPA or you have appointed a replacement attorney able to replace them; or you have appointed attorneys to act together and independently.

The person you choose as your property and affairs LPA must not be bankrupt when they sign the LPA form

Your attorney(s) must always be a named individual or a trust corporation, which is often a trust department of a bank.

The person you choose as your property and affairs LPA must not be bankrupt when they sign the LPA form. If they become bankrupt in the future, this could lead to the LPA’s cancellation if it has been registered with the Office of the Public Guardian.

What are my options when deciding how I want my attorney to act for me?

Although you may appoint as many attorneys as you wish, you must specify if you want to them to act:

  • together
  • together and independently;
  • together in some matters and together and independently in others.

In an LPA form, “together” means jointly and “together and independently” means jointly and severally for the purposes of the Mental Capacity Act 2005.

"If one attorney disagrees with a proposed action, that decision cannot be made"

Attorneys appointed together must always act together and all agree before making decisions on your behalf. If one disagrees with a proposed action, that decision cannot be made. Donors often use this as a safeguard to ensure all those they trust to make decisions for them are in agreement. But you should remember:

  • this could delay decisions that may need to be taken at short notice;
  • it is difficult for them to act/make decisions;
  • the LPA could be cancelled if they cannot work together;
  • the LPA could be cancelled if one of them dies or lacks the capacity to make decisions as your attorney.

Attorneys appointed together and independently can act both on their own and together. This means, for example, that any one of them can decide on a particular issue. This can be useful if one of your chosen attorneys is not available all the time due to, say, working abroad for long periods. Furthermore, if one attorney falls ill, dies or lacks the capacity to act, the LPA will still continue and the remaining attorney(s) can continue to act.

You can also appoint your attorney(s) to act together on some matters and together and independently on others – for example, acting together when deciding to sell your house but together and independently when paying your nursing home fees.

Remember that if you appoint more than one attorney but do not specify how you are appointing them, they will be appointed together.

"The LPA must be registered with the Office of the Public Guardian before use"

What legal checks and balances can I make to safeguard my future?

An LPA is a powerful legal document, so it is vital that your attorney will have the same control you have over your money, savings, investments and property unless you have included restrictions in your LPA. However, the following safeguards are built into an LPA to protect you:

" The LPA must be registered with the Office of the Public Guardian before use"

  • The LPA must be registered with the Office of the Public Guardian before use;
  • Someone must be identified to provide a Part B Certificate confirming, among other things, that you understand the purpose of an LPA and the scope of powers you are giving to your attorney(s);
  • Certain people chosen by you called ‘named persons’ have to be notified before an LPA’s registration;
  • Signatures of the donor and attorney(s) must be witnessed;
  • You, your attorney(s), and named persons have the right to object to an LPA’s registration;
  • Your attorney(s) must respect the code of practice which provides guidance on the Mental Capacity Act 2005 and stipulates that they must always act in your best interests.

Optional safeguards include:

  • Restrictions or conditions in the LPA, which your attorney(s) must follow – e.g. that your attorney(s) keeps accounts and submits them to someone of your choice such as a family member or professional;
  • Giving guidance in your LPA which your attorney should take into account when making decisions on your behalf.

What is a replacement attorney?

These are people you can appoint to act in place of an attorney no longer able or willing to make decisions.

    • You can choose as many replacements as you want.

"You can choose as many replacement attorneys as you want"

  • You may decide to appoint a replacement, although an LPA does not require you to do so.
  • Replacement attorneys can act instead of any original attorneys, but you must set out how they be appointed and how they are to act, e.g. “solely” or “together”.
  • At the time you make your LPA, you are obliged to also appoint your replacement attorney who must sign up to take on the role like any other attorney.
  • A replacement attorney(s) will play no part in making decisions for you unless they have to replace your original attorney(s).

If you have more than one attorney, you can specify who you do and do not wish your replacement to replace. You can include a condition specifying who is to be replaced, such as:

  • any attorney or a specific attorney (of your choice) unwilling or unable able to carry out their duties;
  • any attorney unwilling or unable to carry out their duties except a specified attorney (of your choice)

You can only appoint a replacement for your original attorneys, and not additional replacements for the replacement attorneys.

It is important that you or your attorneys inform the Office of the Public Guardian (OPG) that an attorney has been replaced. The document will need to be sent to the OPG which will attach a note to it stating that the replacement has happened and update the LPA register.

Can my attorney claim out-of-pocket expenses or charge for services?

Your attorney(s) may claim expenses for things such as telephone calls, postage charges and transport costs incurred while undertaking their duties. The expenses must be in direct proportion to the size of your estate and their duties. However, you decide if your attorney(s) receives payments/fees specifically for acting on your behalf.

If you decide your attorney may charge or you appoint a professional, such as a solicitor or an accountant, it would be wise to note the agreed fees in section A, part 8 of the LPA form.

Can my attorney(s) give up their role?

Yes. If your LPA is unregistered, your attorney must give you formal notice to do this. If your LPA is registered, the attorney must give formal notice to the Office of the Public Guardian (OPG) and they should also notify you. They can do this by using form LP5 (disclaimer by attorney or proposed attorney) available from the OPG or its website.

"If you want a replacement attorney, you must appoint them yourself when you create an LPA"

You cannot authorise your existing attorney(s) to appoint a replacement attorney if they wish to leave. If you want a replacement, you must appoint them yourself when you create an LPA.

What happens if my attorney does not act in my best interests?

The Public Guardian is responsible for maintaining the register of LPAs. If the OPG receives evidence that an attorney is not acting correctly, the Public Guardian will consider if action is needed.

The Court of Protection may also become involved and ask the attorney(s) to account for all their dealings; it may cancel the LPA if there is sufficient evidence of incorrect behaviour.

The attorney in question may be ordered to compensate you for any losses. Anyone ill-treating or wilfully neglecting someone they have care of who lacks capacity, or to whom an LPA appointment relates, can be found guilty of a criminal offence, punishable by a fine and/or a prison sentence of up to five years.

How can I help my attorney work best for me?

Inform your attorney now of any specific views/wishes you have in order to help them make future decisions in your best interests, e.g. your thoughts on ethical investments. You can also give them written guidance within the LPA. If you change your mind about a particular issue, always let your attorney know.

How do I choose ‘named persons’?

A “named person” is someone you have specified in your LPA to be notified when an application is made to register your LPA. Selecting a “named person” is one of the key safeguards of an LPA. Once notified, if your named person is concerned about your LPA’s registration – e.g. they feel you were put under pressure to make it, they can object to the LPA being registered.

"Selecting a ‘named person’ is one of the key safeguards of an LPA"

You are advised to name up to five people who know you well enough to be able to raise any concerns about an application to register your LPA. Naming this many people could be particularly useful if, in the future, one or more of them cannot be contacted. It is very important that you keep the addresses/contact details of your named persons up to date. You should do this on a separate sheet and keep this with your completed LPA. You must not make any amendments to a completed and signed LPA.

If you decide not to name anyone or if you do not have anyone suitable, you must have two separate Certificate Providers.

What is a Certificate Provider?

This is the person you must select to complete a Part B Certificate of the LPA form, confirming that you understand the LPA and that you are not under any pressure to make it. Choosing your certificate provider is a vital safeguard of an LPA. S/he must complete the Part B Certificate as soon as possible after you fill in and sign your parts of the LPA. The certificate is a vital part of the LPA document and must not be detached from it; the LPA is not valid and cannot be registered without it.

This is the person you must select … confirming that you understand the LPA and that you are not under any pressure to make it

You can choose two types of certificate provider:

Category A - Knowledge certification – a knowledge-based provider is someone that you have known personally for at least two years.

Category B - Skills certification – a skills-based provider is someone who considers that they have the relevant professional skills and expertise to certify your LPA.

The following are suitable skills-based certificate providers listed on the LPA form:

  • a registered healthcare professional (including a GP);
  • a solicitor, barrister or advocate;
  • a registered social worker;
  • an independent mental capacity advocate (IMCA).

You may also pick someone not listed on the form. However, they too must consider they have the relevant professional skills and expertise to provide a certificate and be able to describe them on the certificate. Skills-based certificate providers may charge a fee for providing the certificate.

You cannot select anyone from the following list to be a provider:

  • a member of your or your attorney’s family;
  • a business partner or paid employee of yours or your attorney(s);
  • an attorney appointed in this form or another LPA or any EPA (Enduring Powers of Attorney) made by you - (EPAs have been replaced by LPAs in England and Wales, though they can still be used if made and signed before October 2007);
  • the owner, director, manager or an employee (or any member of their family) of a care home where you currently live;
  • a director or employee of a trust corporation appointed as attorney in your LPA.

"A certificate provider feels you have been influenced or pressured into making an LPA, they can inform us about their concerns"

If your certificate provider has any concerns about your understanding of the LPA or feels you have been influenced or pressured into making it, they can inform us about their concerns.

The Certificate Provider and Witness Guidance booklet is available from the OPG.

How do I register my LPA? And what is the role of the LPA register?

Your LPA can be registered any time after it has been completed and signed by all required signatories. The benefit of prompt registration is that it will be ready for use by your attorney(s) whenever it is needed, but it cannot be used until it has been registered.

"You cannot make any changes to the LPA if it has been signed, witnessed and certified"

If an application to register your LPA is made long before it is needed, you may have to occasionally check the registered document to ensure its contents are still relevant to your circumstances.

You cannot make any changes to the LPA if it has been signed, witnessed and certified. But if the contact details of your named persons or your attorney(s) change, you should record these on a separate sheet to be kept with your LPA. If you do need to change any aspect of your LPA, such as restrictions or conditions - or you want to appoint a new attorney – you will need to consider making a new LPA.

The LPA register is a searchable database detailing all registered Lasting Powers of Attorney. Once your LPA is registered, it is important to remember that certain information will be available to anyone who applies to search the register (there is a fee to search). One aim of the register is to allow those with an interest, such as healthcare professionals, to see whether an LPA has been registered by the Office of the Public Guardian (OPG) for a particular person.

How can I object to an LPA being registered?

Only the donor, the named persons or other attorneys may object to an LPA’s registration.

1.Objections on factual grounds – the OPG can be asked to stop registration if:

  • the donor is dead;
  • the attorney is dead;
  • there has been dissolution or annulment of a marriage or civil partnership between the donor and attorney (unless the LPA provided that such an event should not affect the instrument);
  • the attorney(s) lack the capacity to be an attorney under the LPA;
  • the attorney(s) have disclaimed their appointment.

"Objections to the Court of Protection against an LPA’s registration can only be made on certain grounds"

2.Objection on prescribed grounds – objections to the Court of Protection against an LPA’s registration can only be made on the following grounds:

  • the power purported to be created by the instrument is not valid as an LPA - eg. the person objecting does not believe the donor had capacity to make an LPA;
  • the power created by the instrument no longer exists – eg. the donor revoked it when s/he had capacity to do so;
  • fraud or undue pressure was used to induce the donor to make the power;
  • the attorney proposes to behave in a way that would contravene his/her authority or not be in the donor’s best interests.

The OPG will require appropriate evidence to support any factual objection raised. Donor objections do not need to be on specific grounds. If the Office of the Public Guardian or the Court of Protection receives an objection to your application to register an LPA, they will contact you to advise what steps you should take next.

Useful contacts for more information

The Office of the Public Guardian (OPG)is an executive agency in the Ministry of Justice. It is headed by the Public Guardian, who is responsible for registering LPAs and for maintaining the register. The OPG only advises on its own processes; it cannot provide legal advice or services to any party. It deals with any representations (including complaints) about how an attorney appointed under an LPA is exercising their powers, including checking the attorney, which could involve a visit from a Court of Protection representative. If anyone is concerned or has a complaint about an attorney or the handling of an LPA’s registration, they can contact the OPG for advice.
Archway Tower, 2 Junction Road, London N19 5SZ
Tel: 0845 330 2900; fax: 020 7664 7705
Email: customerservices@publicguardian.gsi.gov.uk
www.publicguardian.gov.uk

Age Concern England,the UK’s largest organisation to promote the wellbeing of the elderly; provides vital services, information and support.
Astral House, 1268 London Road, London SW16 4ER
Tel: (information line) 0800 00 99 66
www.ageconcern.org.uk / www.accymru.org.uk

Carers UK - The UK's only national membership charity supporting carers who provide unpaid care for ill, frail or disabled family members or friends.
20/25 Glasshouse Yard, London, EC1A 4JT
Tel: 020 7566 7637; fax 020 7490 8824
www.carersuk.org

Background and guidance for attorneys

A read through of the OPG’s guidance notes may help in understanding an attorney’s duties. Find information on:

  • the attorney’s duties and responsibilities;
  • how your attorney(s) will assess your capacity before making decisions on your behalf;
  • how your attorney(s) can obtain personal information about you from, say, a bank, doctor or solicitor to help make decisions in your best interests;
  • how your attorney(s) should decide what is in your best interests.

Your attorney(s) will also find the guidance useful in helping to build up a full picture of the issues involved.

The law on mental capacity

The Mental Capacity Act 2005 for England and Wales (http://www.legislation.gov.uk/ukpga/2005/9/contents) potentially affects everyone aged over 16 (and in some cases, under 16). It provides a statutory framework to empower and protect people who may not be able to make certain decisions for themselves, such as those with dementia, learning disabilities, mental health problems, and stroke or head injuries.

"The Mental Capacity Act 2005 allows people to plan ahead for a time when they may lack capacity"

It clarifies who can make decisions in which situations and how they should do this. It enables people to plan ahead for a time when they may lack capacity. The Act covers major decisions to be made on behalf of a person who lacks capacity to decide for themselves on matters such as their property and affairs, healthcare treatment or where they live, as well as everyday decisions regarding personal care or what they eat.

Mental Capacity Act (2005) code of practice

The code supports the Act and provides guidance and information to all those working under the "legislation"

It guides those working with and/or caring for adults who lack capacity, including family members, professionals and carers. It describes their responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to do so themselves.

Attorneys and other people, such as professionals and paid carers who have a duty of care to someone lacking capacity, must have regard to the code.