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.
- Senior Associate Solicitor
Nicola joined Jackson Barret & Gass 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.