A Power of Attorney is the only legal way for a person to appoint someone to act on their behalf to make financial decisions should they lose mental capacity at some point in the future.
Under a Property and Financial Affairs Power of Attorney. Attorneys can make decisions about buying/selling a Donor’s property. They can access the Donor’s bank accounts and claim the Donor’s benefits and pensions. Under a Health and Welfare Power of Attorney. Attorneys can give/refuse consent to particular types of health care, decide whether the Donor stays in their own home or moves to a care home. And choose the right care home for the Donor.
You can contact the Office of the Public Guardian which keeps a register of Lasting Powers of Attorney.
Before registration: you can make a new Lasting Power of Attorney and choose a new Attorney. But only if you have the capacity. After registration: If you only have one Attorney and no replacement Attorneys your Lasting Power of Attorney becomes invalid. If you have a replacement Attorney then they will take over.
Your Attorneys do not have to be paid however you can decide an amount to pay them. If you have multiple Attorneys you can choose to pay them differently. Attorneys can claim reasonable out of pocket expenses incurred when acting on your behalf.
No a Property and Financial Affairs Attorney can only make decisions about your finances and property.
You can choose to stop acting as an Attorney at any time. If the Lasting Power of Attorney is registered you will need to complete form Lasting Power of Attorney 005 disclaiming your appointment and send this to Office of the Public Guardian.
A replacement Attorney if the Donor has specified one in the Lasting Power of Attorney
No. However if the Attorney still has the capacity to cancel the existing Lasting Power of Attorney, they can do so and create a new Lasting Power of Attorney appointing a new Attorney.
Yes. You must return the Lasting Power of Attorney to the Office of the Public Guardian with a note of the change so that they can update the Lasting Power of Attorney register. If this is not done the Replacement Attorney may be unable to act.
Yes but only if they still have the capacity to do so.
The Lasting Power of Attorney will be terminated. As Attorney, you should send the LPA and a Death Certificate to the Office of the Public Guardian. The Office of the Public Guardian will not give advice on how to deal with the Donors estate.
The Donor, the people to be told or other Attorneys can object to the registration of a Lasting Power of Attorney. Other people can object to registration but to do so they must pay a court fee. Objections by a person to be told or an Attorney must be made on factual grounds. The Office of the Public Guardian can be asked to stop the registration through an objection if:-
Objections to the Court of protection against registration of the Lasting Power of Attorney can only be made on the following grounds:-
The Office of the Public Guardian requires appropriate evidence to support any factual objection raised.
You can include a restriction stating how the Attorney must demonstrate this. For example “my Attorney(s) must not use my Lasting Power of Attorney until they have obtained medical evidence that I have lost mental capacity”.
No, the Office of the Public Guardian will not need evidence. But as happens with all Lasting Power of Attorney registrations they will notify the Donor on receipt to give them an opportunity to object to the registration.
Yes, & No. you must pay a £82 registration fee for each power of attorney you apply for, though if paying through Fern Wills LPAs or by cheque one simple payment may be enough
Their is an application form to waive or reduce the OPG £82 fees.
The Office of the Public Guardian can supply office copies of the original Lasting Power of Attorney document and may charge a fee.
The Office of the Public Guardian won’t usually accept an application to register without the original Lasting Power of Attorney form. They may, however, consider registering a ‘certified’ copy – a copy signed on every page to show it is a true copy and not tampered with in any way. It is usually possible for the company who prepared the Lasting Power of Attorney to certify the copy. When sending a certified copy it is also required to send a written statement explaining how the original was lost.
Someone who can confirm the Donor has the full mental capacity and understands what giving Power of Attorney means. A certificate provider can be someone the client has known for at least two years. Or someone with relevant professional skills to assess their capacity such as a Doctor, Nurse, Financial Adviser, Will Writer or Solicitor.
If at all possible you should discuss the contents of the Lasting Power of Attorney with the Donor not in the presence of the chosen Attorney(s) in order to form your opinion. The Donor must be able to communicate with you freely.
If the Donor does not have the capacity to make another Lasting Power of Attorney, the Attorney or another relevant person can apply to the Court for an Order covering the decisions that need to be made on the Donor’s behalf.
Yes, the Office of the Public Guardian can cancel the registration on factual grounds. For example (Bankruptcy of the Attorney) and the Court of Protection can terminate the Lasting Power of Attorney for other reasons. For example (the Attorney is not carrying out duties correctly). Or if the Donor still has the capacity, they can revoke the Lasting Power of Attorney. They must advise their Attorney(s) and the Office of the Public Guardian of the revocation so the Lasting Power of Attorney can be removed from the register.
A searchable database containing the details of all registered Lasting Powers of Attorney. Once a Lasting Power of Attorney is registered, certain personal information will be available to anyone who applies to search the register.
