Lasting Powers of Attorney
A simple guide
VI. FAQs, Resources and Links
Frequently asked questions
Which LPA do I need?
Whether you need a Health & Welfare LPA, a Property & Financial Affairs LPA, or both depends on your individual situation and wishes. Most people will benefit from having both in the event they become mentally incapable, as they allow different kinds of decisions to be made on your behalf.
How long does it take to register an LPA?
The Office of the Public Guardian takes 8 to 10 weeks to register an LPA, assuming there are no errors, according to www.gov.uk. If there are mistakes in the LPA form, it could take significantly longer, or result in the LPA being rejected. So it is best to make sure there are no errors!
Why are there two kinds of LPA?
A very good question! The Property & Financial Affairs LPA was introduced in 2007 as a replacement for the Enduring Power of Attorney, which previously served a similar purpose. The Health & Welfare LPA was introduced at the same time and was innovative – previously it was impossible to nominate someone else to make health and care decisions for you. Why it was decided to make them separate documents is a matter for the government of the time!
Can my attorney be my spouse/friend/child/cat?
You can nominate anyone to be your attorney, as long as they are over 18 years old and a human. For a Property & Financial Affairs LPA it is slightly more restrictive – you cannot have someone as an attorney if they are bankrupt or subject to a debt relief order (this restriction does not apply to Health & Welfare LPAs.)
Does one registration fee cover both my LPAs?
No. If you want to register both a Health & Welfare LPA and a Property & Financial Affairs LPA, you need to pay a full registration fee for each. This may seem unfair, but it's the way HM Government does it. Remember that an LPA does not have legal effect until it is registered.
I have a next-of-kin. Why would I need a Health & Welfare LPA?
Contrary to common belief, your next-of-kin has no legal right to make decisions on your behalf. In fact, while the term 'next-of-kin' is often used informally to mean the person who should be contacted in case of an accident, it has no meaning in law. The only way to give someone the authority to make medical decisions on your behalf by nominating them as your attorney.
Can I draw up my LPA(s) now and register them later?
Yes, if you so wish. Once an LPA is drawn up and signed, you can hold onto it then send it for registration at a later date. However, your LPA must be registered while you are still mentally capable, so if you wait until you have lost mental capability it will be too late.
Who is a certificate provider and what do they do?
A certificate provider is just someone who signs the LPA form to 'certify' (hence the name) that you understand what you are doing in making the LPA and that nobody is coercing you to make it. It is an important job as it protects the person making an LPA from being exploited. The certificate provider is usually someone over the age of 18 who has known you for at least two years, though they can also be a professional. The certificate provider must not be one of your attorneys or substitute attorneys, nor can they be related to them or you. There is more guidance on who cannot be a certificate provider on page 52 of booklet LP12 (viewable here).
Will I still be able to make my own decisions with an LPA?
Yes, absolutely, so long as you have mental capacity (the ability to make your own decisions). The Health & Wellbeing LPA can only come into effect when you lose mental capacity anyway, and although you can specify for a Property & Financial Affairs LPA to come into effect at any time, it does not take away your own ability to make decisions
In fact, as long as you have mental capacity, you can end (revoke) your LPA or remove a trustee by writing to the Office of the Public Guardian.
What is a 'donor' in an LPA?
The 'donor' in an LPA is the person who is giving the attorneys the ability to make decisions which affect them. So if you are making an LPA to give your spouse the ability to make decisions for you, you are the 'donor'.
What is 'mental capacity'?
Mental capacity is a very important idea which affects how an LPA can be used. It is a legal term defined in the Mental Capacity Act 2005 as follows:
“A person must be assumed to have capacity unless it is established that he lacks capacity.” 1.1(2)
“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” 1.2(1)
In other words, mental capacity is something which everyone has until they show they are incapable of making a decision for themselves, for neurological or psychological reasons.
For example, the most obvious way to lose mental capacity is to be unconscious – if you are unconscious and cannot be woken, it is clear you cannot be asked to make a decision as it is impossible for you to communicate. However, there are other ways of demonstrating a lack of mental capacity, such as an inability to understand information relating to a decision, an inability to remember that information, or an inability to weigh the information to come to a decision.
When thinking about LPAs, mental capacity is important because you need to have mental capacity to make an LPA. Furthermore, any LPAs you have made will only come into effect when you have lost mental capacity, unless you have stated otherwise in a Property & Financial Affairs LPA. This is to ensure that you can continue to make all decisions for yourself until you are unable to do so.
When someone has mental capacity they might be referred to as 'mentally capable'. When someone lacks mental capacity, they might be referred to as 'mentally incapable'.
Resources and Links
"Make, register or end a lasting power of attorney" (web page)
https://www.gov.uk/power-of-attorney/
This is the UK government's online guide to making LPAs. Very useful reading.
"Lasting power of attorney forms" (web page)
https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney
From here you can download the forms you need to make an LPA. Here you can also read online or download "LP 12 Make and register your lasting power of attorney: a guide", which is the official and comprehensive guide to making an LPA.
"LP 12 Make and register your lasting power of attorney: a guide" (PDF)
The official guide to making an LPA in PDF format. Downloadable and printable.
"Avoiding errors when completing a lasting power of attorney form" (web page)
Government guidance on how to avoid the most common mistakes when completing an LPA. Contains links to the information in PDF and website form.
"Lasting power of attorney – Mental Capacity Act" (web page)
https://www.scie.org.uk/mca/practice/representing-the-person/lasting-power-of-attorney/
On the website of the Social Care Institute for Excellence. A nice, simple explanation of what LPAs are and how they work. Contains a great video dispelling the myth of next-of-kin.
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