In this article Frank Smith, managing partner at Frank Smith & Co Solicitors, explains how an LPA can help secure a person’s future and if appointing children as attorneys can be an issue.
In an aging society, it is important that we have appropriate measures in place to secure our future. Appointing a lasting power of attorney (LPA) is a great way to do this, but it seems that people are still unfamiliar with these legal documents or do not understand the different types of LPAs and the mistakes that can be made when setting them up.
When it comes to appointing an attorney, many lack clarity over who they can and cannot choose. However, an individual can appoint whoever they like as an attorney, be it a spouse, close friend, relative, sibling or even a solicitor.
For those who choose to appoint their children, they should assess a number of factors before doing so. In this article, I will clarify the purpose of an LPA and what to consider when choosing a family member as your attorney.
What is an LPA?
A lasting power of attorney (LPA) is a document which, when registered with the Office of the Public Guardian (OPG), gives people, known as attorneys, responsibility to make decisions on someone else’s behalf (the donor). There are two types of LPAs available: health and welfare LPAs and property and financial decisions LPAs, with each LPA covering different aspects of a donor’s life and including different responsibilities for an attorney.
The health and welfare LPA can only be used once the donor has lost mental capacity, which is defined by the OPG as being unable to make decisions for themselves. Attorneys would have the authority to discuss a donor’s healthcare and medical treatments with doctors as well as make decisions on their living arrangements. Within this LPA, a donor can inform their attorneys whether they wish to receive life sustaining treatment.
The property and financial affairs LPA differs from health and welfare in many ways, but most of all, the donor can decide whether they would like the LPA to be enforceable once it has been registered with the OPG and, unlike the health and welfare LPA, this LPA can be used when they have full mental capacity. This LPA covers a donor’s financial decisions to include operating bank accounts, paying bills and buying or selling property.
When it comes to appointing an attorney, many lack clarity over who they can and cannot choose. However, an individual can appoint whoever they like as an attorney, be it a spouse, close friend, relative, sibling or even a solicitor.
The powers given to an attorney can be restricted and the donor can also provide them with guidance on how they would like their affairs to be dealt with. Even though the LPA can be used once registered, this does not mean that upon registration the attorneys can have complete control of the donor’s financial affairs. While they have mental capacity, only with their instruction can the LPA be used.
Setting Up an LPA
In both types of LPA, the donor can appoint as many attorneys as they want, but it is advised to have no more than four as too many attorneys may not be able to agree on the decisions they make on a donor’s behalf. A donor can also nominate replacement attorneys who would only act as an attorney should one or more of the attorneys be unable or unwilling to act once the LPA is registered. Much like attorneys, there is no restriction on the number of replacements that can be chosen, but again it is advised to have no more than four for the same reason.
Each LPA can have differing attorneys, should the donor wish to have different people to handle their financial affairs to those making their health decisions. An attorney must be over the age of 18, have mental capacity and, for the property and financial LPA, the attorney cannot have been bankrupt. The attorneys can be a donor’s partner, family, friend or even a professional such as a solicitor.
To complete an LPA registration, the donor must have a certificate provider countersign the LPA. The certificate provider’s role is to confirm to the OPG that the donor is fully aware of the significance of the LPA and has not been pressured or defrauded into making one. The certificate provider can be a friend, a work colleague or someone who has known the donor for at least two years, but they cannot be related to the donor or any of the attorneys. Alternatively, the certificate provider can be a professional, such as a doctor or solicitor, who can professionally assess that the donor unequivocally understands the LPA they are creating, and they are of sound mind.
The donor and attorney’s signatures must be witnessed for the LPA to be registered and this can be done by the certificate provider or an unrelated third party who is not involved with the LPA. Once the LPA is completed it is sent to the OPG – along with a cheque for £82 – for registration. The current waiting time for an LPA to be registered is between 10 and 12 weeks, but in some cases, it can be significantly more.
Each LPA can have differing attorneys, should the donor wish to have different people to handle their financial affairs to those making their health decisions.
Becoming a Deputy
A deputy has the same responsibilities as an attorney would through an LPA, but the application timescale and costs are significantly greater. Applications are made through the Court of Protection and a deputyship is only granted in situations where someone lacks mental capacity, does not have LPAs and needs assistance with their finances and welfare decisions. Much like LPAs, there are two types of deputyship applications: property and financial and health and welfare.
The application can take up to six months to complete and cost over £1,000, excluding solicitor’s fees, which in desperate circumstances can leave vulnerable people unable to have their funds accessed to receive the relevant care.
Appointing Children as Attorneys
There is no reason why a donor’s children should not be appointed as an attorney, if the donor has a good relationship with them and trusts that they will act with integrity and always have the donor’s best interests at the forefront of all decisions. In circumstances where a donor’s children do not have a good relationship with each other, it can be difficult for them to act as attorneys together and make joint decisions if their communication is strained. In situations like this, it would be advised to either have one child as an attorney and the other as a replacement, or if this would cause more of a divide in the family, to not appoint any children at all.
Donors often feel more comfortable appointing their children as health and welfare attorneys, as they would have more of an insight to the preferred medical treatment their parent would want.
When making an LPA, it is important for the donor to give consideration to who they would feel most comfortable with making decisions on their behalf and explain to them the gravity of the responsibilities the LPAs carry.
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Overall, there is no right or wrong answer as to who you should appoint as an attorney. What is important is the need to understand how valuable LPAs can be, how they can support you in the worst-case scenario, and the different aspects mentioned above to consider when creating an LPA and choosing who to represent you.
Frank Smith, Managing Partner
Essex House, 18 Rodney Road, Cheltenham, Gloucestershire, GL50 1JJ, UK
Tel: +44 01242 801748
Fax: +44 01242 335154
Frank Smith is Managing Partner of Frank Smith & Co Solicitors. With over 20 years’ experience in property and private client law, Frank is a nationally recognised legal affairs expert. Independent legal directory Chambers UK recommends him as an expert in his field.
Frank Smith & Co Solicitors is a bespoke, Cheltenham-based law firm with well over 100 years combined legal experience, specialising in amongst other things, private client law.
