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on Lasting Powers of Attorney

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LPAs — More Information

EPAs and LPAs have to be made while you are still capa­ble of giv­ing your con­sent to some­one else man­ag­ing your affairs. The per­son you choose is called your Attor­ney”, and you can choose more than one if you wish. Nor­mal­ly, they will only take over your affairs if you become inca­pable of run­ning them yourself.

Pro­vid­ed an EPA was valid­ly exe­cut­ed pri­or to 30th Sep­tem­ber 2007, it remains valid and can be used in its nor­mal way. Despite this, there may be rea­sons why you would wish to revoke your EPA in favour of an LPA; The Office of the Pub­lic Guardian esti­mates that fraud occurs in 10 – 15% of cas­es where an EPA­has been registered.

There are two types of LPAs; one for mon­ey (Prop­er­ty & Affairs) and one for health (Per­son­al Wel­fare). The Prop­er­ty & Affairs LPA is designed sim­i­lar­ly to EPAs, to enable some­body to look after your finan­cial affairs. The Per­son­al Wel­fare LPA cov­ers health and per­son­al mat­ters, and can only be used once you have lost the capac­i­ty to make a par­tic­u­lar deci­sion your­self. You must make clear on the form if you want your attor­neys to be able to make life-or-death deci­sions about your med­ical care.

Guide to Mak­ing an LPA

The Per­son­al Wel­fare LPA can also include day-to-day care, cov­er­ing such issues as diet, social activ­i­ties and rou­tine med­ical mat­ters such as a trip to the opticians.

The safe­guards are that up to 5 nom­i­nat­ed peo­ple are to be noti­fied when an LPA is reg­is­tered, ensur­ing that peo­ple you trust, oth­er than Attor­neys, are informed that your affairs are to be tak­en over by some­one else. Your Attor­neys have to act in your best inter­ests, and you can also give guid­ance in the LPA for your Attor­ney, which is not bind­ing but will help them under­stand your wishes.

A Cer­tifi­cate Provider’ must sign a cer­tifi­cate to con­firm that you have entered into the LPA freely and with­out undue influ­ence or duress. A Cer­tifi­cate Provider will gen­er­al­ly be your Solic­i­tor, or oth­er approved pro­fes­sion­al, although it can be any­body who has known the Donor for at least two years.

The major change from EPAs is that the Prop­er­ty & Affairs LPA must be reg­is­tered before it can be used. Appli­ca­tions must be made to the Office of Pub­lic Guardian (OPG) with pay­ment of the cur­rent fee (£110.00). The OPG then noti­fy the per­sons you have nom­i­nat­ed, and they have six weeks to object, fail­ing which, the LPA will be reg­is­tered. Due to the cur­rent vol­ume of appli­ca­tions, it is now tak­ing approx­i­mate­ly 13 weeks to reg­is­ter an LPA.

To save cost, LPAs can be made and held in safe cus­tody until required. This at least post­pones the pay­ment of the reg­is­tra­tion fees. How­ev­er, we would advise against this strat­e­gy as you can­not apply for reg­is­tra­tion if you lose capac­i­ty in the mean­time. The Per­son­al Wel­fare LPA can only be used if you have lost capac­i­ty, which will ren­der the pow­er inef­fec­tive if this hap­pens before registration.

Although more expen­sive to set up than EPAs, LPAs are still con­sid­er­ably cheap­er than not mak­ing one and then los­ing capac­i­ty. If you do not make a valid EPA or LPA before you lose men­tal capac­i­ty, your loved ones will have to apply to the Court of Pro­tec­tion to be appoint­ed as a Deputy’. This can be a slow and expen­sive process. Peo­ple with no close rel­a­tives will have an Inde­pen­dent Men­tal Capac­i­ty Advis­er appoint­ed by the Court.

LPAs only relate to Eng­land and Wales. Scot­land has sim­i­lar pro­vi­sions, and North­ern Ire­land is still reliant on EPAs.

Guide to Last­ing Pow­ers of Attorney

We’ve made Last­ing Pow­ers of Attor­ney easy. 

See our guide

Nico­la Lloyd is our LPA spe­cial­ist solicitor.

Employee Profiles  Nicola

Nicola Lloyd

  • Solicitor & Director

Nicola joined JBGass in January 2017. Previously, Nicola worked at a high street firm in Altrincham where she spent the last 10 years dealing with all aspects of private client work.

Nicola has completed all of the modules required to become a qualified member of the Society of Trusts and Estate Practitioners and merely awaits formal notification of acceptance to the Society.

Outside of work, Nicola enjoys playing netball, playing in 2 social netball leagues and spending quality time with her young family. She has also recently taken up running and has so far ran a couple of 10km events.