Why make a Lasting Power of Attorney?
The professional body for trust and estate practitioners Why make a Lasting Power of Attorney? The The benefits benefits of of drawing drawing up up a will a will are are widely widely recognised. recognised. In doing In doing so, you so, make you make provision for for the the winding winding up up of of your your affairs affairs after after death. death. This not only has has advantages for for those those who who will will find find themselves themselves administering administering your estate, but also gives you you peace peace of mind, of mind, knowing knowing that that you you have have selected selected as as executors the individuals best best suited for for the the role role and and have have given given them them necessary the necessary instructions (for further details see see the the STEP STEP brochure leaflet Why Make make a a Will? ). will? ). There are also opportunities available to to make make provision in advance in advance for the for the possibility of you becoming incapable of of managing your your own own financial financial and welfare and welfare affairs during your lifetime. This This becomes increasingly important important as the as risk the of risk of supervening mental incapacity grows grows through through longevity, longevity, illness illness or accident. or accident.
02 03 An ordinary power of attorney is not An ordinary an effective power provision of attorney because is not it an is effective automatically provision revoked because by it is mental automatically incapacity revoked just by at mental the time incapacity when it just is most at the needed. time when The Court it is most of Protection needed. The has Court power of to appoint Protection people has power to manage to appoint your affairs, people to but manage the procedure your affairs, can be but costly the procedure and time-consuming. can be costly and More importantly, time-consuming. you More will have importantly, lost the right you will to choose have lost who the will right have to choose the responsibility who will have for the looking responsibility after your for affairs looking at after a time your when affairs it is at vital a time that they when are it is dealt vital with that they efficiently are dealt and sympathetically. with efficiently and sympathetically. Until 1 October 2007, it was possible to Until appoint 1 October someone 2007, to it was safeguard possible your to appoint interests someone and to to act safeguard on your your behalf interests in and respect to act of on your your financial behalf in affairs respect by of an your Enduring financial Power affairs of by an Attorney Enduring (EPA), Power which of Attorney remains (EPA), valid which even remains after valid the individual even after the granting individual the granting power (the power donor) (the becomes donor) becomes mentally mentally incapable. incapable. A simple Asimple procedure procedure enables enables the the attorney to register the the EPAwith with the the court court and and then then to proceed to proceed as before as before with little with further little further court involvement. court involvement. EPAs made prior to 1 October 2007 EPAs will remain made valid prior and to 1 be October capable 2007 of will registration remain valid for as and long be as capable the donor of registration alive, so EPAs for as will long be around as the donor for is many alive, years so EPAs to come. will be around for many years to come. However, an EPA enabled an attorney However, to an deal EPAenabled only with an financial affairs. attorney In to addition, deal only it with was financial felt that the affairs. relatively In addition, simple it procedures was felt that the could relatively result simple in the procedures system being could abused. result in Therefore, the system a being more abused. complex and Therefore, robust a system more complex was introduced and to robust enable system attorneys has been to be introduced appointed not to enable only to attorneys look after to a be person s appointed financial not only to affairs, look after but also a person s to make decisions financial affairs, on their but behalf also to relating make to decisions health and on their welfare behalf issues. relating These to types health of and document welfare issues. are known The new as Lasting types of Powers document of Attorney are known (LPAs). as Lasting Powers of Attorney (LPAs).
The professional body for trust and estate practitioners Why make a Lasting Power of Attorney? Lasting Powers of Attorney At Lasting the time Powers the power of Attorney is given, the As explained donor must previously, be capable an of EPA understanding differs from ordinary its nature power and effect of for attorney it to be in valid. that it It remains will be valid necessary even to after make the separate donor becomes LPAs, mentally one dealing with incapable. property At the and time affairs the power and the is other given, to the cover donor personal must be welfare capable of decisions. understanding its nature and effect for it to be valid. The same principle LPAs applies were to LPAs, created but by it will the be Mental Capacity necessary Act to make 2005 separate (MCA 2005), LPAs, which one dealing covers with England property and and Wales affairs only. and the MCA other 2005 to cover provides a personal statutory welfare framework decisions. to deal with situations where adults lack capacity to make decisions for themselves or who have capacity, but want to make preparations for a time when they may lack capacity in the future. A Code of Practice supports the MCA LPAs were 2005 and created provides by the guidance Mental and Capacity information Act 2005 to (MCA all those 2005), which working covers England under the and legislation. Wales only. Certain MCA 2005 categories provides of a people statutory are obliged framework to have to deal regard with to situations the Code of where Practice, adults including lack capacity attorneys to make and decisions those for acting themselves in a professional or capacity, who have such capacity as STEP but want members. to make preparations for a time when they Property may lack and capacity affairs in the LPAfuture. These are designed for you to appoint ACode of attorneys Practice to supports make a the range of MCA decisions 2005 and including provides the guidance buying and and selling information of your to all house those and working other assets, under the dealing legislation. with your Certain tax affairs, operating categories bank of people and are building obliged society to accounts have regard and to claiming the Code benefits of Practice, on including your behalf. attorneys These and can those be used acting at in your a professional direction capacity, while mentally such as capable STEP members. and also by the Attorneys if you lack capacity to make these decisions. Personal welfare LPA Attorneys Property and appointed affairs LPA under this These document are designed can make for you to appoint decisions attorneys relating to make to a range your of living decisions accommodation including the buying and care, and selling of consenting your house to and or other refusing assets, medical dealing treatment with your on tax your affairs, behalf, operating and bank on and day-to-day building society matters accounts such as and diet claiming and dress. benefits This on can your only behalf. used, however, if you have lost the capacity to make decisions for yourself.
04 05 Provisions common to both forms Although Personal welfare there are LPA two separate prescribed Attorneys appointed forms, both under contain certain this document common can provisions make including decisions relating statements to your to be living completed accommodation by you and setting care, consenting out your to or refusing details, the medical attorneys treatment to be on appointed your behalf, and and how on day-to-day they are to act, matters and such details as diet of any and persons dress. to be notified on the application for registration. Provisions common to both forms Although there are two separate The prescribed attorneys forms, must both state contain that they certain understand common provisions their duties and obligations. including statements to be completed by you setting out your details, the attorneys to be appointed and how they are to act, and details of any persons to be notified on the application for registration. In addition, the legislation has introduced The attorneys a person must state known that as the certificate they understand provider, their either duties some one and who obligations. knows you well or a professional person. The certificate provider In addition, must the sign legislation the form hasto confirm introduced that a they person have known discussed as the the certificate contents provider, of the LPA(s) either with someyou on one your who own knows (if possible) you well or and a that they professional can state person. that you The understand certificate the provider purpose must and sign scope the form of the tolpa, no confirm undue that pressure they have or fraud discussed the involved contents of in the the LPA(s) decision with to you make onan LPA your and own there (if possible) are no other and that factors they preventing can state that the you creation understand of the the LPA. purposes and scope of the LPA, no undue pressure or fraud is involved in the decision to make an LPAand there are no other factors preventing the creation of the LPA. Registration Both Registration types of LPA must be registered Both types before of LPAmust they can be registered be used by before your they attorneys can be and used both by your can be Attorneys registered and while both you can be still registered have mental while you capacity still have (unless mental it specifies capacity to (unless the contrary). it specifies Registration to the contrary). can be by However you or your a Personal attorney. Welfare As stated LPA previously, can only be a used personal when welfare you no LPA can longer only have be used the mental when capacity you no to longer make particular have the mental decisions capacity affecting to make your health particular and personal decisions welfare. affecting your health and personal welfare. The cost of registration as at July 2012 is GBP130 per document.
The professional body for trust and estate practitioners Why make a Lasting Power of Attorney? Appointment of attorneys Although Appointment LPAs of are attorneys detailed, they need Although to maintain LPAs are flexibility detailed, so they that: need you to may maintain appoint flexibility more than so that: one attorney You may to appoint act together more than (jointly), one together attorney to and act independently together, together (jointly and independently, and severally), or together or jointly in in respect respect of some of some matters matters and and jointly together and and severally independently respect in of others. respect If of no others. selection If no selection is made then is they made must then act they jointly. must act If attorneys together. have If attorneys to act jointly have to then act together, the LPA fails then if the any LPAfails of the attorneys if any of the die or lose attorneys capacity die or (and lose also capacity in some (and other also in circumstances) some other circumstances). unless a substitute If they can attorney act together is appointed. or If they independently can act jointly then and the LPAwill severally then continue the LPA even will if an continue attorney even if an should attorney die, etc. should die, etc. a Areplacement attorney of successor may be attorney nominated. may be nominated you may grant general or limited authority. You may grant If general general power or limited is granted authority. then If general the attorneys power is may manage granted then all your the attorneys property and may affairs manage or all make your all property personal and welfare affairs or decisions. make all personal If any welfare restrictions decisions. If or any conditions restrictions are orto apply conditions then are they to must apply be then clearly they stated must be clearly stated. where Wherea STEP member or or other other professional is is appointed as as an an attorney it is is recommended that that their current terms and and conditions conditions of of business (including fees fees to to be be charged) are discussed with with and and approved by you. The The attorney s powers and and duties duties The The attorney s powers may may be be restricted and the the LPAcan can specify specify that that it it can only only come come into into force force once once you no longer have have mental mental capacity (this applies in any case to personal welfare LPAs). capacity (this applies in any case to The personal attorneys welfare only have LPAs). limited The powers attorneys to make only gifts have of your limited powers money or to property, make gifts although of your money the court or may property, authorise although the court additional may authorise giving. additional giving. When making investment When decisions, making the attorney investment will need decisions, to take appropriate the attorney professional will need to advice. take appropriate professional advice. An attorney may refuse their An appointment attorney may by completing refuse their a appointment specified form, by which completing will need a to specified be sent to form, you and which copied will to need the to be other sent attorneys to you and and copied the court. to the other Attorneys attorneys must and observe the court. the Code Attorneys of Practice must and STEP observe members the Code and of other Practice professionals and STEP who members are being and paid other for their professionals services are who required are to display being paid a higher for their standard services are of care required and skill to display than a nonprofessional care attorney. and skill than a a higher standard nonprofessional attorney.
06 07 The Court s role Both The Court s the Court roleof Protection and the Both Office the Court of the of Public Protection Guardian and the (OPG) Office of have the roles Public to Guardian play the (OPG) Court of have Protection roles to play can determine the Court issues of such Protection as the can validity determine of LPAs, issues mental such capacity as the validity (or the of lack LPAs, of mental it) and the registration capacity (or the and lack revocation of it) and of the LPAs. registration and revocation of LPAs. However the Court will will expect expect attorneys to to seek seek advice advice from from STEP STEP members and or other other professionals professionals before involving the the Court. Court. The The Court would need need to to be be involved involved if if it it is is necessary necessary to to appoint appoint a deputy a deputy (formerly known as as a receiver) receiver) where it it is is not not possible possible to to create create an an LPA, or or a previous previous EPA EPA or or LPA LPA or or has has been been revoked. revoked. The registration of LPAs is dealt with The registration by the OPG, of which LPAs is will dealt with maintain by the OPG, a register which will of all maintain LPAs. Basic a register information of all LPAs. about Basic an LPA can be information made available about an to anyone LPAcan who be makes made available a search to of anyone the register. who The makes OPG a search should of also the register be contacted if payment it is suspected of a fee that (currently abuse 25). is taking place or the attorneys are not acting in The the OPG donor s should best also interests. be contacted if it is suspected that abuse is taking Your place legal or the advisor s attorneys role are not acting As in the can donor s be seen, best your interests. legal advisor will be involved in the initial process of advising you about LPAs and they may also act as your certificate provider. Your legal advisor will also be able to advise on the registration process. It may also be appropriate in some cases Your for solicitor s your legal roleadvisor to be appointed As can be seen, as an your attorney, solicitor often will with be a involved family member in the initial or a process close friend. of advising you about LPAs and they Please may also note act that as your the above certificate summary applies provider. to Your English solicitor and Welsh will also be Lasting able to advise Powers on of the Attorney registration made on process. or after It may 1 October also be 2007. appropriate Different rules in some apply cases in for Scotland your solicitor and to be Northern appointed Ireland. as attorney, often with a family member or a close friend. The above summary applies to English and Welsh Lasting Powers of Attorney made on or after 1 October 2007. Different rules apply in Scotland.
What is STEP? The Society of Trust and Estate Practitioners (STEP) is the worldwide professional body for practitioners in the fields of trusts and estates, executorship and related issues. STEP aims to promote the highest professional standards through education and training leading to widely recognised and respected professional qualifications. STEP also works to demonstrate the value of good stewardship and planning across future generations to governments, professionals, financial institutions and the public. STEP internationally has more than 17,500 members, and more than 4,000 students worldwide are currently studying for STEP qualifications. This leaflet and the companion leaflets Why make a will?, Why make a trust? and What to do when someone dies, as well as other informational leaflets produced by STEP, are available to view and order at /leaflets These brochures apply to England and Wales only. Different laws apply in Scotland and Northern Ireland. For further details of our Members practising in your area, contact the STEP office at: Or visit: /stepmembersearch STEP 2012 Artillery House (South), 11-19 Artillery Row, London, SW1P 1RT Telephone: +44 (0)20 7340 0500 Facsimile: +44 (0)20 7340 0501 Email: step@step.org Website: Acompany limited by guarantee and incorporated in England and Wales under the Companies Act 1985. Registered number 2632423. Registered Office Artillery House (South), 11-19 Artillery Row, London, SW1P1RT United Kingdom