A lasting power of attorney needs to be registered with the Office of the Public Guardian before you can start acting as an attorney. You do not need any legal experience to be appointed an attorney under an LPA, but an LPA is a legal document, and as an attorney, you have obligations and responsibilities to always act in the donor’s best interests and comply with their instructions.
A donor must have the mental capacity to create a lasting power of attorney. However, an LPA only usually comes into use once that capacity diminishes and the donor is struggling or unable to make decisions.
Before you start acting as an attorney
The donor who has created a power of attorney must have the mental capacity to do so under the Mental Health Act 2005. This means they can still make decisions about their medical treatment and day-to-day care and manage their financial matters.
Depending on the type of LPA in place, start by discussing preferences for personal welfare and care and finance decisions with the donor. An attorney must always act in the donor’s best interests, so it's essential to know their plans or preferences for their medical care and daily routine and how they want you to manage their finances. Most donors appoint a close family member or partner to act as an attorney, so you may already know these things.
Make sure the LPA has been registered. There is a rapid online service for new LPAs, but if you have an older version from years ago, check it is registered with the Office of the Public Guardian (OPG). A registered LPA will be stamped with ‘validated OPG’. If you cannot find the LPA, it may have been executed when the donor made or updated their will. Talk to their solicitor, who should have copies of all the documents.
There are two types of LPA; property and financial affairs and health and welfare. Familiarise yourself with the type of LPA - you may be appointed attorney on both types of LPA - and whether it includes any specific instructions or restrictions.
The different types of LPA
There are two different types of power of attorney:
- A property and financial affairs LPA
- A health and welfare LPA
Executing both is optional, but most people do so when they make a will. The attorneys appointed under each LPA can be different but are commonly the same and usually next of kin, such as a spouse or partner in a civil partnership or other close family members.
After you start acting as an attorney
Some LPAs can be pretty detailed in the level of instruction they give. As an attorney, you must follow these instructions on behalf of the donor. For example, the donor may have included preferences about financial decisions or healthcare, and you should consider these preferences when making decisions. In many cases, a person will gradually lose mental capacity, so the attorney must help the donor make their own decisions as much as they can. Any decisions made in collaboration with the donor or without their input because they no longer have mental capacity must be made in the donor’s best interests and respect their civil and human rights.
As an attorney, you cannot request that someone else make the decisions for you, although you can take professional advice. The Office of the Public Guardian and the Court of Protection can check your decisions, so it is always worth keeping evidence or a paper trail of any decisions that could be deemed controversial or that other family members may contest. The LPA may also limit the scope of your decision making, and a financial institution like a bank or a healthcare provider can refer your conduct if they think you are acting outside the legal authority of the LPA.
The OPG can arrange to visit you and the donor together, the donor on their own, or speak to others such as the donor's family members, bank, social services or carers. An investigation could prevent you from continuing as an attorney if you acted outside the legal authority of the LPA, if you have not carried out an explicit instruction in the LPA or if you have not been acting in the donor’s best interests. If you are unsure about certain decisions or there is resistance from the donor’s family, it is always better to take legal advice. This step demonstrates that your decisions were considered and in the donor’s best interests. It also evidences your intention to do the right thing.
The OPG can act if the donor is not well treated or if they suspect the donor was coerced, pressured or tricked into making the LPA.
What happens if there is more than one attorney?
Some donors will appoint more than one attorney. For example, if they have both a property and financial affairs LPA and a health and welfare LPA, there may be different attorneys appointed for each.
The donor can stipulate how decisions are made if more than one attorney is appointed. If you are one of several attorneys, having some common ground before an LPA is activated is vital to help make decision making as smooth as possible.
An LPA will state different ways to make decisions:
- Jointly - this means all the appointed attorneys must agree.
- Jointly and severally - this means you can make decisions on your own or together.
The LPA may allocate certain decisions to particular attorneys to make independently and reserve more complex or critical decisions for the collective group. A donor might stipulate that attorneys must make certain decisions with assistance from a third party. For instance, they might specify that decisions on pensions must involve a financial adviser.
Whatever the LPA states regarding the allocation of decision making among the attorneys and any conditions or instructions imposed, the attorneys must follow this.
How do you activate a lasting power of attorney?
First, check that the LPA is registered with the Office of the Public Guardian. A paper LPA will be stamped ‘OPG' on every page, and a new digital version can be checked online. If an LPA is not registered, you must do this before activating it.
The rules on when you can activate a lasting power of attorney vary depending on the type of LPA. A health and welfare LPA can only be activated if the donor has lost mental capacity as defined by the Mental Capacity Act 2005 and can no longer make their own decisions. A property and financial affairs LPA becomes active as soon as it is registered. This can be useful if your donor is suddenly and unexpectedly incapacitated due to an illness or accident. This type of LPA also works well for people who may travel abroad for extended periods and need someone to manage their financial affairs in their absence.
If your LPA is registered online under the new system, anyone needing to see it can get a unique access code. This is much quicker and more secure than supplying paper copies, although some organisations may still request these. Any copy of an LPA must be a certified copy of the original, not a photocopy. These usually have to be produced by a solicitor, and there will be a charge per document.
The next step is compiling a list of who you need to notify. A health and welfare LPA should be given to doctors, healthcare professionals and anyone else involved in the social care of the donor, like social services. A property and financial affairs LPA should be provided to the following:
- Building Society.
- Pension provider.
- Mortgage company or landlord if the donor lives in a rented property
- Department for Work and Pensions (DWP) if the donor receives the UK state pension or claims any other state benefits.
- Insurance companies for household insurance and life insurance.
- Utility companies so water, gas, electricity.
- The local authority for council tax.
Remember that family members who are not attorneys may also want to view the LPA and its provisions, especially if they weren't aware of its existence.
Each organisation and institution will have in-house rules for verifying and accepting an LPA. There is no handy one size fits all way it works. It's usually easy to find the relevant information on their website or via a phone call, as a dedicated department often deals with LPAs and other legal issues. In almost every case, an attorney will also have to prove their identity using either their passport or driving licence and offer proof of residence using a recent utility or council tax bill.
Assessing mental capacity
Assessing mental capacity is not always clear cut as most people who lose capacity do so gradually. It is a feature of certain types of dementia that an individual can sometimes appear perfectly lucid and then, at other times, not understand what is happening. Losing mental capacity is often a gradual and inconsistent process, so it can be challenging for an attorney to judge when to activate an LPA.
A donor may be able to understand and make certain decisions but not others. For example, they may not understand which is a better investment account for their needs when interest rates change, but they may be able to express a wish that the attorney can buy a present for a grandchild up to a value of £25. Likewise, with health matters, small decisions about day-to-day care may not prove a problem, but more significant decisions like whether to move into a care home or the choice between certain types of medical treatment may prove too difficult for a donor who is losing their mental capacity.
For transparency and to make it plain that you are putting the donor’s best interests first, it may be necessary to frequently evaluate the donor's mental capacity. This could be every time a decision is made, particularly as their health deteriorates.
The donor should:
- Understand the information surrounding the decision.
- Be able to retain and remember that information for long enough to be able to make the decision.
- Apply the information to reach a conclusion.
- Be able to tell others or communicate the decision - this can be non-verbal communication, such as squeezing a hand.
Mental capacity will be on a spectrum, and many donors who are becoming old and infirm will have the capacity to make some decisions and not others. In addition, their decision making ability may vary daily, so a simple decision that the donor made last week may prove problematic even just a few days later.
The Mental Capacity Act 2005 protects people who cannot make their own decisions, whether this is a temporary or permanent state of affairs. It sets out guidelines for how healthcare professionals and carers should treat people. It can be difficult for an attorney to manage decision making if the donor has some ability to contribute to decisions about their care and financial affairs. Sadly, this will become easier once the donor is clearly and consistently without any capacity.
The difference between lasting power of attorney and enduring power of attorney
In October 2007, the system changed, and the new Lasting Powers of Attorney took effect. LPAs were preceded by Enduring Powers of Attorney or EPAs, which are similar but have less flexibility, are more limited in their application and lack the built-in safeguards offered by the newer LPAs.
If you created an EPA before 1st October 2007, it will still be valid and effective unless you execute a new LPA, in which case the later document will override the EPA.