Powers of attorney

In our view, everybody. Anyone can, of course, potentially become physically or mentally incapable as a result of an illness or accident regardless of how old they are.

A will operates after death but it is a wise precaution to have appointed attorneys that you trust to make important decisions and take important actions on your behalf should the need arise during your lifetime.

Lots of our clients choose to execute LPAs at the same time as making their wills, giving them peace of mind that they have made plans for both after their death and during their lifetime.

In the event that an individual loses capacity without an appointed attorney then it may be necessary for an application to be made to the Court of Protection, for a deputy to be appointed. You can read more about our Court of Protection team here.

An LPA only takes effect once it has been registered with the Office of the Public Guardian (OPG).

It can be registered at any time, whether immediately after it has been completed (in which case it is simply stored safely and only put into use once it is needed) or at some time in the future when the need to use it actually arises.

Registration in itself does not mean that the individual in question has lost capacity. They can carry on making decisions in the usual way, despite registration, until such time as capacity is lost. The important thing to remember is that an LPA cannot be used at all until it is registered.

An LPA can be cancelled by the donor at any point whilst they retain capacity to do so. This needs to be done, however, by way of formal revocation and not by simply altering the original LPA.

If an individual’s attorney is their spouse or civil partner, a divorce, dissolution or annulment of the marriage or civil partnership will end their appointment, unless it has been expressly stated otherwise in the LPA.

In theory, anyone who is over 18 can be an attorney save for, in the case of an attorney appointed to a Property and Financial Affairs LPA only, he or she must not be a bankrupt.

When choosing your attorney or attorneys, however, it is obviously important to choose someone who can be trusted implicitly. This is often one or more family members, trusted friends or professional advisers.

If more than one attorney is appointed, they can be appointed “jointly” (in which case they must do everything together) or “jointly and severally” (in which case they can act together or individually) in relation to all issues.

It is also possible to appoint a replacement attorney to act in place of first named attorneys, if they become unable to act in the future.

An attorney’s precise powers will depend upon the type of LPA that has been set up and whether any restrictions on their power have been included in the document but, in general, an attorney must:

• make decisions that are in the donor’s best interests;
• only make decisions that they are enabled to, by the terms of the LPA;
• not delegate authority they have been given to others, unless authorised to do so; and
• maintain the donor’s confidentiality.

There are some things that the attorney cannot do. For example, an attorney cannot:

• sign a will on behalf of the donor;
• act in circumstances in which their power is expressly limited or forbidden by the donor;
• make gifts on the donor’s behalf, except in limited circumstances;
• make decisions that are not in the donor’s best interests;
• make decisions using a health and welfare LPA unless the donor has lost mental capacity; or
• consent to the donor’s marriage or divorce.

A completed form needs to be sent to the Office of the Public Guardian (OPG), along with the requisite court fee. The fee is currently £82 per document, although some people may qualify for a fee exemption. You can find more details on the OPG website, click here to visit. In our experience it can take 10-12 weeks for the registration process to be completed by the OPG.

Yes, it is possible to object to the registration of an LPA for a loved one. To do this you will need to lodge an application with the Office of the Public Guardian (OPG) and we would suggest that you obtain legal advice before doing so.

EPAs were prevalent prior to October 2007, after which date it was not possible to execute new ones and they were replaced by LPAs.

EPAs, like a Property and Financial Affairs LPA, enabled individuals to make decisions on behalf of individuals in respect of property and financial affairs.

Whilst new EPAs cannot now be created, those that were executed prior to October 2007 can still be used. An EPA only needs to be registered when or if the donor has lost or is losing mental capacity and can still be used prior to that time, assuming there is no restriction within to the contrary.