By Tom Philips at August 2, 2023

Complete Guide to Lasting Power of Attorney

If you are worried that someone you know or love is losing the ability to make their own decisions about their finances or health, then you might want to consider helping them to appoint a lasting power of attorney.

Deciding to appoint a lasting power of attorney can be a hard decision to make and the process isn’t always straightforward, which is why the team at Equity Release Warehouse have created a complete guide to lasting power of attorney for you to read. This is an important issue for many people looking at applying for equity release.

Defining a Lasting Power of Attorney

As part of our complete guide to lasting power of attorney, we must first start with defining exactly what a lasting power of attorney is.

Many retirees consider taking out a lasting power of attorney. A lasting power of attorney is someone who you appoint to make all of your decisions for you when you no longer feel like you have the mental capacity to make the decisions yourself. This includes decisions about your health, your medication or your finances.

The lasting power of attorney (LPA) will act on your behalf to make these decisions for you and in your best interest. This needs to be someone you trust wholeheartedly, as they have control over what happens to you should you become ill and lose your own mental capacity.

There are two main types of lasting power of attorneys. The first type of LPA is someone who will make decisions about your finances and your property.

The second type of LPA will handle things when it comes to your health, any medication you are on and your overall welfare. This might become incredibly important if you become ill in any way, especially if you suffer from diseases such as dementia and Alzheimer’s [1].

Other people require a lasting power of attorney because they got into a serious accident and suffered form brain damage or other injuries which means that they are no longer able to make decisions about their own future.

If you want to make someone your lasting power of attorney, or want someone else’s LPA, then you will need to sign a legally binding document that declares you as this person’s official LPA.

Having gained a better understanding of what a lasting power of attorney is, continue reading our complete guide to lasting power of attorney below for more information on why someone would need an LPA, the costs associated with taking out an LPA and what the advantages are to taking out an LPA.

Why would someone need an LPA?

As part of our complete guide to lasting power of attorney, it’s important to understand why someone would need a lasting power of attorney in the first place.

Someone might need an LPA for a whole host of different reasons. The main reason why someone would need an LPA is because they lose their ability to make decisions themselves, as they no longer have the mental capacity to do so.

This could be because someone has developed a limiting disease such as dementia, Alzheimer’s, Parkinson’s, or have experienced a stroke.

Likewise, someone might have gotten into an accident which means that they suffer from brain damage, which substantially means that they are no longer able to make their own decisions about their health or about their finances.

There are also a few advantages to making someone else your lasting power of attorney.

This is a great chance to talk to your loved ones and family members about who you want to manage your health and finances when you are unable to manage them yourself, and might even promote a wider discussion about who your next of kin will be and who will be included in your Will.

Appointing a lasting power of attorney is also cheaper than the alternatives, such as applying to the Court of Protection.

How Does A Lasting Power Of Attorney Work?

To apply for a Lasting Power of Attorney (LPA), the Office of the Public Guardian (OPG) must be contacted.

Two specific forms are utilised for this purpose: the LP1F form, which is used for financial and property affairs, and the LP1H form, which is used for health and welfare matters.

In order for the application to be valid, it must be certified by a ‘certificate provider.’ Solicitors are among the authorised professional groups who can act as certificate providers.

Once the application is fully completed, it must be registered with the OPG. There is a registration fee of £82 per LPA.

If both types of LPAs are required, the total fee amounts to £164 (£82 multiplied by 2). It’s important to note that some individuals may be eligible for a reduction or exemption in the fee.

Additional information can be found in the LPA 120 document, which provides further details on eligibility.

Typically, an LPA becomes effective when the donor loses mental capacity. However, there is an option for the donor to grant power to their attorney(s) once the LPA is registered.

It’s important to clarify that this particular option only applies to property and financial affairs LPAs.

What Is Mental Capacity?

Mental capacity refers to the ability to make or convey specific decisions at the moment they are required.

In order to possess mental capacity, it is necessary to comprehend the decision at hand, understand why it needs to be made, and have an awareness of the potential consequences resulting from the decision.

It is common for individuals to have the capacity to make decisions regarding certain matters while lacking capacity in other areas.

For instance, they may be capable of choosing what to have for dinner but struggle to comprehend and manage their home insurance. Additionally, an individual’s capacity to make decisions may vary from day to day.

Requiring additional time to comprehend or communicate does not imply a lack of mental capacity.

For instance, having dementia does not automatically render someone incapable of making any decisions independently.

When an individual faces challenges in expressing their decision, every effort should be made to overcome those difficulties and assist them in making decisions for themselves.

How Do I Confirm that I No Longer have Mental Capacity?

Whilst it can be difficult accepting that you no longer have mental capacity, proving that you do not have the mental capacity to make decisions for yourself is a lot more straightforward than you might think.

In order to prove that you do not have the mental capacity to make decisions, you need a certificate provider to sign the LPA.

This needs to be someone you know well, or someone in a position of trust or authority such as a doctor, a lawyer, a priest or a vicar. It is important to understand that this person cannot be related to you [2].

The Mental Capacity Act [3] has been put in place by the NHS to protect people who lack the mental capacity to make their own decisions and more information about The Mental Capacity Act can be seen here.

What Is A Certificate Provider?

When completing a Part B Certificate of the LPA (Lasting Power of Attorney) form, it is crucial to select the appropriate person as your certificate provider. This individual will confirm that you fully comprehend the LPA and are not being coerced or pressured to create it.

Choosing a suitable certificate provider serves as an essential safeguard for your LPA. The certificate provider should promptly complete the Part B Certificate after you have filled in and signed your sections of the LPA.

It is important to note that the certificate is an integral part of the LPA document and must not be detached from it. The LPA is considered invalid and cannot be registered without the completed certificate.

You have the option to choose between two types of certificate providers:

Category A – Knowledge certification: This pertains to someone you have personally known for at least two years and can vouch for your understanding of the LPA.
Category B – Skills certification: This involves selecting a certificate provider who possesses the necessary professional skills and expertise to certify your LPA. The LPA form provides a list of suitable skills-based certificate providers, including registered healthcare professionals, solicitors, barristers, advocates, registered social workers, and independent mental capacity advocates (IMCA). Please be aware that skills-based certificate providers may charge a fee for providing the certificate.

You also have the option to choose someone not listed on the form. However, this individual must still believe they possess the relevant professional skills and expertise to provide the certificate and be able to describe their qualifications on the certificate.

Skills-based certificate providers not listed on the form may also charge a fee for their services.

There are certain individuals who are not eligible to be chosen as certificate providers, including your business partner or paid employee, an attorney appointed in this or another LPA or any previously established Enduring Power of Attorney (EPA), and the owner, director, manager, or employee (or their family members) of the care home where you currently reside.

If your certificate provider has concerns about your understanding of the LPA or suspects undue influence or pressure, they can report their concerns to the appropriate authorities.

The Certificate Provider and Witness guidance booklet, available from the Office of the Public Guardian (OPG), provides further information on this matter.

What Are the Main Benefits Of Making An LPA?

It can be comforting to know that if you reach a point where you are unable to make decisions for yourself in the future, the attorney you have chosen will step in to make those decisions on your behalf.

The establishment of a Lasting Power of Attorney (LPA) ensures that the person you have designated as your attorney will possess the legal authority to act on your behalf.

By having an LPA in place, you can potentially prevent a third party or someone you may not trust from taking advantage of you or your finances, as they would need to apply to the Court of Protection to be appointed as your deputy.

Creating an LPA now can greatly simplify matters for your family and friends in the event that you lose capacity. It can help streamline the management of your affairs, reducing both the cost and time required to handle them in the future.

Additionally, initiating discussions among your family and friends about future scenarios and decision-making can be facilitated by having an LPA in place. This can serve as a catalyst for planning and preparing for such events, ensuring that everyone involved is informed and ready for the future.

What are the Main Obligations and Duties Of An Attorney?

An attorney appointed under a power of attorney holds a duty of care towards the donor. It is their responsibility to ensure that the donor’s bank account and property are kept separate from their own personal assets.

The attorney is required to maintain detailed records of all their activities and transactions undertaken on behalf of the donor. These records can be shared with the donor’s solicitor or family members in the event that the donor loses capacity.

This documentation serves as an important measure to ensure transparency and accountability in the attorney’s role.

Who Can Be An Attorney on My Behalf?

In legal terminology, an “attorney” refers to an individual authorised to act on behalf of another person.

It is not necessary for attorneys to possess a solicitor’s qualification. Many individuals opt for family members, trusted friends, or other individuals without a legal background.

When selecting an attorney, it is crucial that you share a strong familiarity, mutual respect, and assurance that they will prioritise your best interests.

You have the freedom to choose any mentally capable person aged 18 or older as your attorney, which includes:

Your spouse, civil partner, or partner.
A family member.
A close friend.
A professional, such as a solicitor.

Once you have signed section 9 and the certificate provider has signed section 10, the attorneys must sign your LPA. It is advisable for them to do so promptly after the certificate provider, ideally on the same day.

Who Can’t Act as An Attorney?

There are certain individuals who are ineligible to serve as attorneys, which include:

A person who is currently bankrupt or has obtained a debt relief order cannot act as an attorney for financial decisions under an LPA.
Bankruptcy and debt relief orders do not impact the eligibility of individuals to act as attorneys for health and welfare LPAs.
If an individual is listed on the barred list of the Disclosure and Barring Service, they are prohibited from serving as an attorney, unless they are a family member who is not receiving any compensation for their role as an attorney. Engaging in such activity would constitute a violation of the law.

Can I Give Power Of Attorney To A Friend (Non-Family Member)?

There is a common misconception that individuals with mental capacity can only grant lasting power of attorney to blood relatives. However, this belief is inaccurate. In reality, the creation of an LPA enables the donor, the person establishing it, to appoint a trusted individual, such as a close friend, as their attorney-in-fact.

Once designated, this chosen friend can make decisions and manage the donor’s affairs on their behalf, covering financial matters as well as health and welfare choices.

While it is common for blood relatives to be selected as attorneys, the law does not impose any restrictions on the donor’s ability to choose a friend as their attorney, as long as the donor possesses the capacity to make such decisions.

What happens if my lasting power of attorney is no longer able to act in my best interests?

Unfortunately, as a pensioner, no one knows what the future might hold. Some people might appoint someone their lasting power of attorney with total faith that the individual will be able to act in their best interest when the time comes.

However, as no one knows what the future might hold, it does not always work out this way. You might end up falling out with the individual that you appoint as your power of attorney.

Likewise, the person you choose to be your lasting power of attorney might suffer from an illness yourself or might pass away.

This is why it is always a wise decision to ask other people to be your power of attorney, should anything happen to your first choice. Whilst this can sometimes be a tough conversation and decision to make, it is always worth it in the long run.

It is important to understand that your ‘standby’ lasting power of attorney will only act if and when your first choice is unable to carry out their role or no longer wants to.

If the time comes when you are no longer able to make decisions for yourself, and there is no lasting power of attorney in place, then you might need to apply to the Court of Protection to act on your behalf. This can be both time-consuming and costly.

Signs that someone no longer has mental capacity to make their own decisions

As part of our complete guide to lasting power of attorney, we think it’s important to understand what mental capacity is.

Unfortunately, accepting that someone no longer has mental capacity can be incredibly hard. For the individual in question, it can sometimes be difficult to accept that you no longer have the mental capacity to make your own decisions.

The reality is that as we get older, we are at more risk of developing more health conditions, which might impact our mental capacity.

Someone could be said to lack mental capacity when their brain stops being able to make smart and coherent decisions. They might refrain from making any decisions at all, in fear of making the wrong decision.

It can be incredibly hard for the law to accept that someone has lost their mental capacity. The law uses some very strict qualification criteria to determine whether or not someone has mental capacity.

These criteria factors are listed below:

Whether or not they are unable to understand the information required to make an informed decision
Being able to remember the information that has been presented to them to help them to make the decision
The ability to weight up the information that has been presented to them
Being able to clearly communicate their decision and the reasons for their decision

If you recognise any of the above signs in yourself or in someone else, then this might mean that you or someone you know is struggling with their mental capacity, and you might need to appoint a lasting power of attorney to make all of your important decisions for you.

The Costs of Lasting Power of Attorney

Unfortunately, there might be a number of small fees associated with appointing someone your lasting power of attorney.

Growing older might involve other costs, such as medical care costs which might mean that you are unable to afford this initial cost.

In this case and depending on your circumstances, you might qualify for what is known as a remission. A remission means that you would only have to pay a reduced fee. Others might qualify for an exemption, which means that you do not have to pay anything at all.

1. Reduced fee (remission)

You will qualify for a reduced fee when it comes to appointing someone as your lasting power of attorney if they earn less than £12,000 before tax. If this is the case, then you might only have to pay half of the total fee.

2. No fee at all (exemption)

Others will qualify for a total exemption when it comes to paying for an application to appoint a lasting power of attorney if they are currently receiving income support, employment support allowance, housing benefits or jobseeker’s allowance.

If you are reading our complete guide to lasting power of attorney and think that you would qualify for a remission or exemption when it comes to applying for a lasting power of attorney, then you should make it known at the early stages of your application for an LPA.

The Different Types of Lasting Power of Attorney

As part of our complete guide to lasting power of attorney, we believe that it is important to explain the differences between the different types of power of attorneys.

There are a few different types of lasting power of attorneys that you should be aware of when it comes to appointing someone as your lasting power of attorney, or helping someone else to do so.

It is also important to understand that you can set up more than one lasting power of attorney, should you choose to appoint more than just one person. This is the ideal situation for anyone who might have numerous family members they might want to appoint, such as children or grandchildren.

It is also worth remembering that when you appoint more than one person as your LPA, you can ask them to act together as a team, or act separately on your behalf. Asking them to act together might be easier for them, as they will have more confidence in their decisions.

1. Ordinary power of attorney (OPA)

You can appoint someone to act as an ordinary power of attorney. When someone is appointed as your ordinary power of attorney, this person will be able to make a whole host of decisions for you, including decisions about your financial situation and affairs.

It is important to understand and remember that this person will only be able to make decisions for you if you no longer have any mental capacity. This will also be suitable if the individual who has lost mental capacity is temporarily in hospital or on holiday and is no longer able to make decisions.

2. Lasting power of attorney (LPA)

When someone is appointed as your lasting power of attorney, this individual will then be able to make decisions about your finances and about your health. Once again, this person will only be able to make these decisions for you if you lose all mental capacity to make these decisions for yourself.

It is important to set up an LPA before you lose your mental capacity, so that these things are in place whilst you are still able to choose wisely. Remember, the LPA will only come into effect once you lose your mental capacity, not when you first appoint someone as your LPA.

This is a great option for anyone who has just been diagnosed with an illness such as dementia or Alzheimer’s, and fears that they will lose their mental capacity in the near to distant future.

3. Enduring power of attorney (EPA)

Finally, the third type of LPA is the enduring power of attorney (EPA). An enduring power of attorney will be able to make decisions about your health care, your finances and your property.

Again, as with any lasting power of attorney clauses, this will only come into effect if and when you lose your own mental capacity, or if you choose to ask someone else to act on your behalf.

Whilst no new EPA’s can be appointed, if you registered someone as your EPA before 2007, then this agreement will still be in place [4].

What is meant by “best interests?”

All lasting power of attorney’s need to act in the individual’s best interests. This means that the individual has to do what they believe to be the best and right thing for the individual they are making decisions for.

They should be taking into account the individual’s wishes and circumstances, and will always try to encourage the individual to participate in the decision-making process as much as possible.

They also need to take into account the individual’s feelings, morals and beliefs. This person should also talk to other family members and inform them of any decisions that they make.

How do I apply for an LPA?

If you want to apply to make someone your lasting power of attorney, then you will need to apply online by visiting here.

Before you can use your LPA, you need to register it with the Office of the Public Guardian (OPG). You need to pay £82 to register a LPA with he OPG.

We recommend you seek the services of a solicitor when applying for a Lasting Power of Attorney.

Alternatively, the Government also provides forms that you are able to print off, fill out and send them back via the post.

Once you have sent off these forms or filled out your online application, you should expect to wait a number of weeks or even sometimes months before hearing back.

Cancelling a Lasting Power of Attorney

It is possible to cancel a lasting power of attorney. This is possible even once it has been registered with the Office of the Public Guardian (OPG).

However, you must still have the mental capacity to cancel an existing lasting power of attorney. You must inform both the Office of the Public Guardian (OPG) and your appointed attorneys for the cancellation to take effect.

You can find specific cancellation instructions via this link here: GOV.UK

It’s also important to know that a power of attorney is terminated when the donor or attorney dies. Likewise, an LPA will come to an end if the donor or attorney becomes bankrupt if it’s a financial affairs or property LPA.

Lastly, an LPA will be revoked if an attorney is deemed to lack mental capacity, or if a civil partnership or marriage between the attorney and donor is annulled or dissolved.

The Court of Protection also has the power to revoke an LPA if it feels the attorney is failing to act in the donor’s best interest, or where the attorney is giving himself or herself excessive “gifts” under the powers given to them by an LPA.

Cancelling an Enduring Lasting Power of Attorney (EPA)

It is necessary to sign a Deed of Revocation in order to cancel an unregistered EPA. It’s advisable to seek out legal advice before you do this.

If the EPA is registered, then it’s necessary to get the permission of the Court of Protection in order to cancel it.

Is it Possible to Change My Enduring Power Of Attorney To A Lasting Power Of Attorney?

If you have previously created an Enduring Power of Attorney (EPA) but now wish to establish a Lasting Power of Attorney (LPA) instead, you have the option to do so.

If the EPA has not been registered, you can simply dispose of it. Subsequently, you can complete the necessary LPA form and apply for its registration, as detailed in the section on Lasting Power of Attorney.

It is important to note that unlike an EPA, an LPA is considered valid only after it has been registered.

Alternatively, you may choose to retain your EPA while also creating and registering an LPA specifically to address your personal welfare in the event that you lose mental capacity.

It is important to recognise that EPAs cannot be utilised to oversee someone’s personal welfare.

Is It Possible to Dispute A Lasting Power Of Attorney?

The Court of Protection holds the authority to revoke a lasting power of attorney if it is demonstrated that the appointed attorney is not acting in the best interests of the donor.

If you would like to learn more about the process of challenging or disputing a lasting power of attorney, you can find additional information by following this link.

What Can I Do If My Attorney Doesn’t Follow My Instructions?

In the event that your attorney behaves dishonestly or fails to adhere to your instructions, you or someone acting in your best interests have the following options:

Lodge a complaint with the Office of the Public Guardian regarding the attorney’s misuse of their powers.
Request the removal of the attorney through an application to the Court of Protection, if it is determined to be in your best interests.

The Court of Protection has the authority to revoke an attorney’s powers in various circumstances, including cases involving fraud, dishonesty, failure to act in your best interests, or the attorney’s inability to fulfil their role due to illness or other reasons.

Additionally, the Court of Protection can clarify the meaning of your lasting power of attorney and determine the extent of your attorney’s powers in case of disagreements or disputes.

The court can also provide instructions on how the attorney should carry out the instructions outlined in your lasting power of attorney.

It is important to note that the Court of Protection does not have the authority to alter any of the instructions you have specified in your lasting power of attorney.

Can I Get Paid If I Act as an Attorney?

An attorney is eligible to receive reimbursement for any necessary expenses incurred while fulfilling their responsibilities.

Your appointed attorney(s) have the right to request reimbursement for expenses related to their duties, including items such as telephone calls, postage charges, and transportation costs.

Professional attorneys, such as solicitors or accountants, typically charge for their services. However, it is also possible for a donor to choose to compensate a non-professional attorney if they so desire.

It is advisable for the donor to have a discussion and document any decisions regarding the payment of attorneys within the Lasting Power of Attorney itself.

If there is no explicit mention of payment arrangements in the LPA documentation, a non-professional attorney cannot be remunerated, except for the recovery of their out-of-pocket expenses.

The expenses claimed should be reasonable and directly proportional to the size of your estate and the responsibilities they undertake. However, the decision of whether your attorney(s) receive payments or fees for acting on your behalf is entirely up to you.

If you choose to allow your attorney(s) to charge for their services or if you appoint a professional, such as a solicitor or accountant, it is advisable to clearly document the agreed fees in section A, part 8 of the LPA form.

Can I Have Health Power Of Attorney And a Living Will Together?

A health power of attorney grants the authority to someone you trust, enabling them to make decisions on your behalf when you are unable to do so yourself.

This encompasses various aspects of treatment and care, including choices related to your place of residence, daily routine, and treatment decisions.

On the other hand, a living will is a document written by you in advance, expressing your refusal of specific medical treatments. It specifically addresses decisions about declining particular medical interventions.

Both the health power of attorney and the living will carry legal weight and significance. However, they can only be activated in the event that you lose the capacity to make decisions or communicate due to an accident or illness.

Do I Need A Will If I Have An LPA?

LPAs (Lasting Powers of Attorney) exclusively pertain to decision-making during the Donor’s lifetime, specifically in cases where the Donor becomes incapable of making decisions on their own.

When the Donor passes away, the power granted by the LPA terminates, and the responsibility for administering the estate falls upon the personal representatives appointed.

In the absence of a Will, the laws of intestacy come into effect, potentially resulting in family members overseeing the estate whom the Donor may not have desired.

Conversely, creating a Will enables the Donor to appoint their preferred executor, ensuring that their assets are managed according to their wishes, so making one is recommended.

Can I Make A LPA During The Early Stages Of Dementia?

Yes, it is indeed possible to create a Lasting Power of Attorney (LPA) during this stage. In the early stages of dementia, individuals often retain the mental capacity to handle their own affairs. It is hoped that this capacity will persist for many years.

Taking advantage of this period, you have the opportunity to proactively establish an LPA, and potentially a will as well, to ensure your affairs are well-prepared for the future.

While it may be a challenging time, it is advisable to consider putting an LPA in place as early as possible following a dementia diagnosis.

How Do I Make Changes To My Power Of Attorney?

Once your LPA (Lasting Power of Attorney) has been registered, it is generally not possible to make modifications or alterations to it.

While there may be a possibility to remove one of the appointed attorneys, it is crucial to consult the Office of the Public Guardian for guidance before taking any steps.

Removing an attorney could potentially result in the termination of your LPA, making it essential to understand the implications and seek proper advice before proceeding.

Can I Restrict the Powers of My Attorneys I Grant?

Indeed, it is possible to impose restrictions on what your attorneys can and cannot do. However, it is worth considering whether this should be regarded as a last resort.

The primary purpose of an LPA is to enable life to continue smoothly even in the event of losing mental capacity. So, why restrict the abilities of your chosen attorneys whom you trust?

Are Social Services Allowed to Override Power Of Attorney?

Social services do not possess the authority to override a valid enduring power of attorney (EPA) or any other type of power of attorney.

An EPA grants the appointed attorney the legal authority to make decisions on behalf of the individual, particularly regarding financial and property matters.

While social services may provide support and assistance to vulnerable individuals, they are not empowered to supersede or disregard the decisions made by the attorney under the power of attorney.

It is crucial to have a clear understanding of the legal requirements and procedures involved in obtaining a power of attorney, ensuring that it is properly executed and registered.

Seeking legal advice and guidance when establishing a power of attorney can help navigate the process, ensuring that the individual’s interests and preferences are safeguarded.

It also aids in understanding the role and limitations of social services concerning power of attorney matters.

Can I Appoint More Than One Attorney?

A donor has the option to appoint multiple attorneys, and this can be done in two different ways:

Attorneys appointed to act together (known as joint attorneys) – In this arrangement, the appointed attorneys must always act jointly. The advantage of this approach is that it provides an extra layer of protection against potential fraud or actions that are not in the donor’s best interests. However, a disadvantage is that if one of the joint attorneys passes away or becomes mentally incapable, the entire power of attorney is terminated.
Attorneys appointed to act together and independently (known as joint and several attorneys) – When attorneys are appointed in this manner, it means that each attorney can act on their own and their signature or actions carry the same validity as if they were the sole attorney. This arrangement ensures continuity even if something happens to one of the attorneys, as the power of attorney remains in force.

Please note that both approaches have their own advantages and considerations, and it is important to carefully consider the specific circumstances and dynamics involved before deciding which option is most suitable.

Do I Need A Lasting Power Of Attorney (LPA) If I Have An Enduring Power Of Attorney (EPA) Already?

LPAs (Lasting Powers of Attorney) were introduced in October 2007, replacing enduring powers of attorney (EPAs) from that point onwards.

However, it is important to note that any EPAs created prior to October 2007 are still considered valid. It is recommended to verify the date of your EPA and ensure that it predates October 2007.

Do I Need a Solicitor to Set-up a Power Of Attorney?

While it is technically possible to create an LPA without the assistance of a solicitor, we strongly recommend seeking professional guidance to ensure your LPAs are properly structured.

There have been numerous instances where the wrong individual was appointed, resulting in financial abuse that required costly intervention from court-appointed solicitors.

Additionally, granting the wrong type of authority in an LPA can lead to complications, as it may render the document unusable in certain circumstances.

It’s important to note that the court maintains stringent requirements for the signing of LPAs, which means they can be rejected multiple times. This situation can be problematic if the Donor subsequently loses mental capacity.

What Is The Key Difference Between a Court Of Protection Deputyship and a Lasting Power Of Attorney?

LPAs are employed when an individual desires to appoint another person to make legal and financial decisions on their behalf in the future.

On the other hand, Court of Protection deputyship is utilised when the person in question has already lost mental capacity, requiring another individual to seek permission from the court to manage their affairs.

Our team can assist you in comprehending the distinction between these two options and determining which one is most applicable to your situation.

How Can I Apply for Deputyship When There is no LPA in Place?

If a friend or family member loses mental capacity and does not have a Lasting Power of Attorney (LPA) in place, it is possible to apply to the Court of Protection to become their deputy.

In cases where there is no willing or suitable friend or family member, the court can appoint a professional deputy.

The process of becoming a deputy can take approximately six months and involves obtaining assessments, completing forms, and paying for a ‘surety bond’ which acts as insurance in the event that the deputy proves unreliable.

The court will provide guidelines outlining the specific decisions a deputy can make, and it is crucial to strictly adhere to the authorised decisions.

The costs associated with the deputyship application include £371 for each application (separate for property and finances and personal welfare, similar to LPAs), a £100 assessment fee for new deputies, £494 if a court hearing is required, and annual supervision fees ranging from £35 to £320.

What Can You Do If You Think Someone Isn’t Acting In The Best Interests Of Someone Who Has Lost Mental Capacity?

If you have concerns about the actions of an attorney or deputy who is not acting in the best interests of someone who has lost mental capacity, it is important to report your concerns to the Office of the Public Guardian.

If there is a lasting power of attorney or an enduring power of attorney that has not yet been registered, you may have the ability to object to its registration.

The Office of the Public Guardian can initiate an investigation into your concerns by directing a court official to visit the attorney or deputy in question. In severe cases, the Court of Protection has the authority to revoke a lasting power of attorney or an enduring power of attorney.

If you suspect that an attorney or deputy is involved in physical or sexual abuse, theft, or serious fraud, it is crucial to contact the police. In certain situations, it may also be necessary to involve social services.

It is important to take appropriate action to protect the vulnerable individual and ensure that any misconduct or wrongdoing is addressed.

What Happens If I Lose Mental Capacity, But Don’t Already Have A Lasting Power Of Attorney Set Up?

If your family needs to handle your financial matters on your behalf due to your incapacity, they will be required to apply for a Deputyship Order from the Court of Protection.

This process can be costly, and it may take up to eight months to obtain the Deputyship Order.

Once the Deputyship Order is granted, the appointed Deputy must comply with the stringent regulations outlined by the Court of Protection. These obligations include the submission of annual accounts to ensure transparency and accountability.

It is important to note that you do not have the ability to choose your Deputy. Anyone, including the local authority, can apply to become your Deputy.

It is crucial to be aware of the potential complexities and time constraints involved in the Deputyship Order application process. Seeking professional legal advice can help navigate this process and ensure that your financial matters are appropriately managed during your incapacity.

References

[1] https://www.nhs.uk/conditions/end-of-life-care/lasting-power-of-attorney/

[2] https://www.scie.org.uk/files/mca/directory/wales-easy-guide-lpa.pdf?res=true

[3] https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/

[4] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/287864/EPA101_Guidance_apply_register_EPA.pdf