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Lasting Power of Attorney (LPA)        

A Lasting Power of Attorney is a legal document giving the person or persons you trust the authority to make decisions on your behalf if you become mentally incapable of making them yourself. The document is drawn up when you do have the mental capacity to make decisions and, once registered, becomes effective immediately and can be used at any time.

There are two types of LPA and you can set up either or both of these:

1. Property and affairs LPA
2. Personal welfare LPA

  Property and Affairs LPA

This type of LPA allows you to choose someone to make decisions about how you spend your money if you become incapable of doing so yourself. It also grants authority for that person to make decisions on the way in which your property and day to day financial affairs are managed, such as paying your bills. Without a registered Property and Affairs LPA, it is becoming increasingly more difficult for third parties to assist in managing the financial affairs of another. It is now a criminal offence to handle the affairs of someone who is mentally incapable, even if authorisation was given while that person was mentally capable – without the registered LPA.

You can specify the extent of the authority you are granting, or any restrictions, to your attorney on your LPA if you wish to do so. For example you may wish to specify your attorney can start managing your financial affairs in the event of your mental incapacity and not before. Note: If you choose not to make any restrictions, your attorney can start using the powers granted by the LPA as soon as it is registered.

  Personal Welfare LPA

This type of LPA allows you to chose someone to make decisions about your healthcare and personal welfare if you become incapable of doing so yourself. This includes making decisions to refuse or consent to treatment on your behalf, and deciding where you live. Again, you may wish to specify the extent of the authority you are granting on your LPA.

  Choosing Your Attorney

You can appoint a friend, relative or professional to hold an LPA on your behalf. They do not need to have specialist knowledge of legal matters to carry out their duties. Your attorney(s) can only act within the authorisation you have granted them on your LPA. You therefore need to consider very carefully the extent of the authorisation you wish to grant. For example, if you wish to grant the power to consent to or reject life sustaining medical treatment, you should advise your attorney of your preferences while you still have the mental capacity to do so.

Your appointed attorney(s) hold a hugely responsible position. However, there are safeguards to protect the LPA from abuse, and ultimately attorneys are answerable to the Office of the Public Guardian. You should consider the following criteria when choosing your attorney(s):
  • How well do they manage their own financial affairs.
  • How well do you know them.
  • Can you trust them to use your money to meet your needs and make decisions that are in your interests.
  • Do you have the utmost confidence them.
  • How happy would they be to take on the responsibility.
  • Consider appointing more than one attorney to minimise abuse of the responsibility. In this case, would your attorneys be happy working together?
  • You can have as many attorneys as you wish, but if you choose more than one, you will need to consider the following in addition to the above:
  • Do you wish them to act together on every matter (decisions must be unanimous).
  • Do you wish them to act together and independently as they see fit.
  • Do you wish them to act together in some matters and independently on others. For example all ‘big’ decisions such as selling a property must be made together.
Note: Before you appoint anyone to be your attorney and to act on your behalf, make sure you have discussed this with them and that they are happy to take on this responsibility.

  Making your LPA

We are able to draw up your LPA and If you are interested in this service please ring Wincham Executor & Trustee Company Limited on 01260 299 700.

The person or persons you appoint to be your attorney(s).
At least one certificate provider.
At least one ‘person to be told’.
At least one independent witness.

  Your certificate provider

This is an independent person you have known well for at least two years who can confirm that you understand the significance of your LPA. If you do not know such a person, you can choose someone having the relevant professional skills to make this confirmation, such as your GP or solicitor. The certificate provider must also certify that no undue pressure or fraud is involved in the making of the LPA. You cannot choose one of your attorneys to be a certificate provider.

  Your ‘person to be told’

These are a maximum of five adults you choose and who know you well. Before you can register your LPA, the ‘persons to be told’ are given the opportunity to raise any objections or concerns. You cannot choose one of your attorneys to be a ‘person to be told’.

  Your independent witness

These are the people who see your LPA being signed by you, and who confirm by their signatures that it was signed in their presence. You cannot choose one of your attorneys to be an independent witness, but your certificate provider can act as a witness. Your independent witness also witnesses your attorney(s) signature(s).

  Registering an LPA

An LPA has no legal standing until it is registered with the Office of the Public Guardian.

To register your LPA you or your attorney must apply to the Public Guardian any time after the LPA is completed. The Public Guardian will then give notice to you and your appointed attorney(s) that your LPA has been received. Your relatives will not be notified unless you have named them as your ‘person(s) to be told’.

The registration fee is £130 payable on registration, and is non-refundable if the person making the LPA or their attorney dies before registration is complete. The fee is payable for each LPA registered.

Once registered, the LPA will continue to be a legal document indefinitely.

Enduring Power of Attorney (EPA)

The EPA was replaced by the LPA on 1st October 2007. A person appointed as attorney, and given this power before this date, can still use the EPA and apply to have it registered.

Cancelling an LPA

You can cancel your LPA if you have the mental capability to do so.

Note: A Property and Affairs LPA is automatically revoked if you or your attorney becomes bankrupt.

Cancelling an EPA

You can cancel an unregistered EPA if you have the mental capability to do so, without applying to the Court of Protection.

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Congleton - Cheshire, England - CW12 4TR