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Lasting Power of Attorney (LPA) factsheet

A useful factsheet of information regarding Lasting Power of Attorney (LPA) from your local wills solicitors in Oxfordshire.

What is a Lasting Power of Attorney (LPA)?

An LPA is a legal document that you can effect to allow someone else to make decisions on your behalf, on either a short- term or long-term basis, if you lose capacity or simply wish others to assist you.

You will be referred to as the ‘Donor’ and the person(s) you appoint to make decisions on your behalf are referred to as ‘Attorneys’. We highly recommend that you consider appointing Reserve Attorneys just in case your appointed Attorneys cannot act.

There are two types of LPA:

  • Property & Financial – the Attorney can help you pay bills, collect your pension on your behalf and deal with your bank and your investments.
  • Health & Welfare – the Attorney can make decisions as to the type of medical care you should receive and how you should receive it. This is very important especially if you need to go into care as your Attorney can help to choose the right one with you.
  • If you lose capacity and wish to appoint someone to act on your behalf, you have to apply to the Court of Protection. This is very costly and can take up to a year.

The importance of a Lasting Power of Attorney (LPA)

There are many reasons why you might need someone to make decisions for you or act on your behalf. They could be temporary or on-going and you do not have to be old to require such assistance:

  • You might need someone to help whilst you are in hospital such as paying the bills
  • You might need someone to help you make important medical decisions
  • You might need someone to help longer-term if you have been diagnosed with dementia and you may lose mental capacity to make your own decisions in the future

Either way, the LPA gives the donor the ability to make such choices when they are able to with as clear mind rather than leaving it until it is too late.

If funds are held in a joint account, the bank is most likely to freeze the account if one of the account holders loses capacity. This is because that person is unable to consent to the use of the funds held in the account.

Consequences of not obtaining an LPA

If someone has lost mental capacity, it is not possible to effect an LPA. The Law does not recognise “next of kin”. Instead, family and friends will have to apply to the Court of Protection to be a Deputy. This is an expensive and complex process that takes time to achieve and is only granted in emergency situations. The Deputy is legally bound to complete annual reports verifying the decisions that have been made and why.

The Property and Financial LPA can be used if the donor chooses before they have lost capacity. This is an invaluable document should the donor be involved in an accident that renders them in hospital for quite some time.

What is mental capacity

Mental capacity means the ability to make or communicate specific decisions at the time that they need to be made. To have mental capacity, you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.

Some people can make decisions about some things, but not other. For example, they may be able to decide what to buy for dinner, but they may not know how to arrange insurance. Alternatively, the ability to make such decisions can change from day to day.

Choice of Attorney

Consider the following when choosing your attorney(s):

  • They must be over 18
  • They must not be an undischarged or interim bankrupt person, if you are making a property and affairs power
  • They must be absolutely trustworthy and possess appropriate skills to make decisions on your behalf
  • They should be people with whom you have a settled and easy relationship and if more than one, who get on with each other well, or who are likely to do so.
  • You can appoint an expert Professional Attorneys who will be insured for the work they carry out.

You can appoint one attorney, but it is advisable to appoint more than one to lessen the chance of abuse of the power and ensure continuity in case the attorney cannot act. They can be family member (it is common to appoint partners and children), friends or a professional adviser. They must agree to be your attorney and should understand the role they will be fulfilling.

Replacement Attorneys

  • It is especially useful to have a replacement attorney if any of your original attorneys are unable to act
  • The choice of replacement attorney should be considered in the same way as your original attorney(s)
  • Usually, the replacement attorney will replace the first attorney who needs replacing

Obligations of an Attorney

  • They must always act according to the principles laid down in the Mental Capacity Act 2005
  • They must always act with your best interests and follow the guidance contained in the Code of Practice
  • They will need to sign the lasting power of attorney document accepting their role and their responsibilities

Attorney’s contact details

You will need to supply the full name, address, date of birth, telephone number (landline or mobile) and email address of your attorney(s).

How do you want Attorneys to operate?

If you have more than one attorney, consider how you want them to act:

  • Jointly, i.e. always together
  • Jointly and severally, i.e. together and independently so that they can sometimes sign together and sometimes separately. This works well when the attorneys do not live near to each other, or if one were to retire or die, then the other attorney could still act
  • You can direct that some tasks, e.g. selling your house, must be dealt with together, and some tasks together and independently. This can be confusing though and is not usually recommended

If they are appointed together, they MUST be able to sign together which can be difficult in practice and if one dies, loses mental capacity or becomes bankrupt (if the power is a financial power), the document can no longer be used.

If you appoint your spouse or civil partner, be aware that dissolution of the marriage or civil partnership terminates the appointment of your spouse/civil partner, unless you have indicated otherwise.

Do you wish to place any restrictions and/or conditions on the attorneys you are appointing?

  • You may wish to consider restricting the occasions when the attorneys should act for you. If you do, you must be careful that the document is still able to be used in the manner it is intended for
  • Providing restrictions makes it more difficult for the attorneys

Giving your Attorneys guidance

  • You may feel it would be helpful to give your attorneys some idea of the way in which, ideally, you would like your finances dealt with if you no longer have capacity
  • In relation to a Health and Welfare LPA, you may want to indicate where you would want to live (Care Home) and what treatments you may prefer not to have if you lose mental capacity
  • You can give them the option to decline life support treatment
  • The Health and Welfare LPA can work in conjunction with a TME (Treatment Escalation Plan) or DNR (Do Not Resuscitate)
  • Please carefully consider the types of decisions you would like your attorney to make on your behalf

Paying your Attorney

  • Generally, family and friends would not expect to be paid, although you may wish for it to be made clear that their out-of-pocket expenses should be covered
  • If you have professional attorneys, they must be paid for their work, and this should be covered within the LPA

Notifying people of the registration of the power

You can choose up to five people to be notified when the LPA is registered with the Office of the Public Guardian (OPG) although there is no need for you to notify anyone. Once the power is registered, it can be used by your attorney(s). It is an important safeguard as they can raise concerns on your behalf. If you decide to notify a person, please consider the following:

  • With whom you are likely to have contact throughout your life
  • Who is interested in your best interests and well being
  • You should tell them that you are naming them, and make sure that they will take their role seriously, as it is for your protection
  • You need to supply their full personal details

The certificate provider

You must choose a person to act as your certificate provider on the lasting power form. Without this, the power cannot be registered or used. This is a VITAL role, as the person concerned is confirming facts about the form and about you:

  • That they have read the prescribed information on the LPA and the part of the form which you have completed, and that part which they will complete
  • That you understand the purpose of the LPA and the scope of the authority which it conveys. They can only do this if they themselves understand what it is, in order that they can ask you the appropriate questions
  • That no fraud or undue pressure is being used to induce you to create the LPA and that there is nothing else that would prevent your LPA from being created

The certificate provider must be someone of your choice and over 18 years of age and someone whom you have known for at least two years. Someone who, on account of their professional skills and expertise, considers themselves competent to make the judgements necessary to give the certificate, such as a lawyer or doctor, or your professional adviser.

They cannot be:

  • A member of your family
  • A family member of any of your attorneys
  • Your business partner or paid employee
  • Any attorney appointed by you
  • The owner, manager or employee of a care home in which you are living, or their family member or partner
  • A director or employee of a trust corporation appointed as your attorney

We can act as Certificate Provider but, in order to fulfil the requirements of the document itself, we may need to see you alone at some point, even though you are with your spouse/civil partner/partner.

If we agree to act as attorney, we cannot act in the role of Certificate Provider, but will supply you with a list of appropriately qualified local solicitors any one of whom could fulfil this role.

Sequence of signing the LPA application form

Ensure signatures are witnessed wherever required

  • The Donor must sign first (Section 9) and continuation sheets if applicable
  • The Certificate Provider (Section 10)
  • The Attorneys and Substitute Attorneys (Section 11)
  • The Donor must sign the registration (Section 15)

The Health and Welfare application has an additional section for the Donor to sign (Section 5 for Life Sustaining Treatment).

LPA fees

Our charge for arranging an LPA is fixed, so there will never be any hidden costs. VAT is added to our charge. The cost for a single LPA is £350. If you wish to apply for both LPAs, we offer a package of just £550. If two people apply at the same time with the same Attorneys, we offer a full package of just £995.

Please note that there is a fee of £82 (VAT exempt) to register each LPA. This is payable to the Office of the Public Guardian (OPG). You may, however, be eligible for a fee exemption if you receive certain benefits or your income is less than £12,000 per annum.

Our fee includes all liaison with the OPG to complete the registration in a timely manner.

Go to our main Wills, Trusts & Probate solicitors page

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FAQs Regarding Wills

What is a will?

A will can be described as : “A written legal declaration of an individual’s intentions as to how he or she wishes to dispose of their property after death”.

  • It only takes effect on death.
  • It is a “living document” so can be changed during lifetime as long as testator maintains mental capacity to do so.

Why is having a Will important?

If you die without a Will, your estate will be dealt with by the strict rules of intestacy, which sets out who inherits from your estate and how much. This means that you will have no control over how and to whom your assets are distributed to.

The rules of Intestacy may not be in accordance with your wishes and someone you did not wish to inherit from your estate may stand to. Equally, if married, your spouse will only inherit a percentage of your estate, whereas you might wish for them to inherit it all.  

A Will therefore protects your family and guarantees that parts of your estate are not given to anyone you do not wish it to go to (e.g. an ex-spouse).

Furthermore, having a Will can ensure that your estate is as tax efficient as possible, meaning your family will not have to pay a penny more in inheritance tax than they need to.

What makes a Will valid?

  • For a Will to be valid according to English Law it must comply with Section 9 of the Wills Act 1837 which states it shall be executed as follows:

    • It must be signed by the testator (or some other person in his presence and at his direction)
    • The testator has to sign the Will with his usual signature and any signature may be acceptable as long as it was made with the intention of giving effect to the Will. 
    • Such signature to be made or acknowledged by the testator.
    • In the presence of two or more witnesses both present at the same time, who then each sign or acknowledge their signatures in the presence of the testator (but not necessarily in the presence of each other). This process is known as the “attestation” or “execution” of the Will.
    • The witnesses must be able to see the testator sign; therefore, they must not be blind.
    • The Will must be dated, either at the beginning or at the end of the Will.

What are some examples of acceptable signatures?

  • A Will signed by a mark only.
  • An incomplete or indecipherable signature.
  • A Will signed by some other person in the presence of and at the direction of the testator. 
  • In these circumstances it may be signed by the other person with the testator’s name or their own name. 
  • A Will signed in foreign characters or in shorthand.
  • A Will signed with words such as “Mum” or “Your Loving Mother” as long as there is no doubt as to whom the signature belonged.
  • Sometimes a hand-written Will may appear on the face of it to be unsigned and therefore invalid. (Wood v Smith [1992]).

What makes a Will Admissible to Proof?

For a Will to be entitled to proof in England and Wales under section 9 of the Wills Act 1837 it shall: 

  1. be in writing – a Will may be in handwriting, but may also be printed e.g. typed or produced by word processor. In fact, “in writing” means any visible form of representing words, including shorthand, Braille and code, provided that the code can be deciphered.
  1. take a gift of property situate in England and Wales or appoint an executor – The testator must have attempted one or both of these things.

Exception – Guardianship of Minors Act 1971 S 4.

Who can Witness a Will?

Section 15 of the Wills Act 1837 states that the witnesses should not be: 

  • Beneficiaries named in the Will or;
  • The spouses/civil partners of such beneficiaries.
  • If someone witnesses a Will and later on marries one of the beneficiaries, this will be acceptable, as they were not married at the date of the Will. If the witness is either a spouse of a beneficiary or the beneficiary himself, then according to the Wills Act, the Will is valid but the gift to the beneficiary will fail.
  • Witnesses do not have to be over 18, but they have to be capable of understanding the nature of the document they are witnessing and the implications of it.

What are my responsibilities as a witness?

The witnesses are there to ensure that the testator: 

  • Is making his Will of his own volition and understands what he is doing.
  • The witnesses do not have to see the content of the Will but have to see the testator sign in the presence of him/her self and the other witness and then sign in the presence of the testator.
  • Witnesses are bound by law to give the Probate Registry or any other proper authority (e.g. police, Crown Court) any information asked for regarding the execution of the Will. If the witness refuses to give such information they may be subpoenaed to attend and give evidence. If a subpoena is issued and they still do not attend they can be arrested.

Who can make a Will?

  1. Anyone who has the relevant capacity.
  • The test for capacity was set out in the case of Banks v Goodfellow (1870) – The testator must understand;
  • The nature of the act (i.e. making a Will) and its effects;
  • The extent of the property of which the testator is disposing, although just a broad recollection is enough;
  • The claims to which the testator ought to give effect i.e. the persons who are fitting of the testator’s bounty or rather those who ought to receive a benefit.
  • What if I am not mentally capable of making a Will?

Statutory WillsIf a proposed testator is not mentally capable of making a Will, then there are provisions under the Mental Capacity Act 2005 and the Court of Protection Rules 2007 which give the Court of Protection (COP) power to authorise a Will made on his/her behalf. In order for a Statutory Will to be made, an application has to be made to the COP.

  1. Testator must be over 18.
  • Can you make a Will if you are under the age of 18?

Privileged Wills – If a proposed testator is 17 or over and is on active military service with the armed forces, then he/she is entitled to make a Privileged Will under Section 11 of the Wills Act 1837 and the Wills (Soldiers and Sailors) Act 1918. This can be made in accordance with a different set of rules, other than those set out in Section 9 of the Wills Act 1837 (e.g. it does not have to be in writing, but any Will made in writing, need not be witnessed).

Can I revoke/cancel my Will if I wish?

    • A will can be revoked (cancelled) during the testator’s lifetime as long as he/she has the requisite capacity to revoke it.
    • A will may be revoked by: 
    • Marriage (unless made in contemplation of marriage).
    • Destruction.
    • Later Will or codicil.
    • Dependant Relative revocation.
    • Revocatory Instrument.

    Some Important Keyword Definitions:

    • A testator (male) / testatrix (female) who has made a Will or given a legacy.
    • A beneficiary is someone who receives something in a Will.
    • An executor is someone who is named in the Will as responsible for dealing with the estate.

FAQs Regarding Probate

What is Probate?

In English Law, Probate is the word used to describe the legal and financial processes involved in dealing with the assets of a person who has died.

Before the executor of the Will can claim, transfer, sell or distribute any of the deceased’s assets, they may have to apply for a Grant of Probate (a legal document which gives them special legal authority to deal with the deceased’s estate).

How Does the Probate Process Work?

The exact probate process can vary depending on the instructions left in the Will and the assets, creditors, and beneficiaries the estate has.

The basic process for an executor is:

  1. Gather the full details of the estate’s assets and debts.
  2. Apply for Grant of Probate (authority to distribute assets from the deceased’s estate).
  3. Complete an inheritance tax return and pay any tax due.
  4. The receipt of a Grant of Probate.
  5. Repay any of the deceased’s outstanding liabilities. 
  6. Distribute the rest of the estate according to the instructions left in the Will.

How Long Does Probate take?

For most estates, this will take around a year. However, the answer really depends on the size and complexity of the estate (i.e. if there are any disputes between the executor, beneficiaries, creditors, or HMRC).

Who Can Apply For Probate?

Only the executor can apply for probate to administer the deceased’s estate.

What if the deceased does not have a Will?

If someone dies without a Will, they are said to be ‘intestate’. The rules of Intestacy will dictate who can apply for a Grant of Administration to administer the estate instead. The then appointed administrator must distribute the assets from the deceased’s estate in accordance with The Intestacy Rules.

For more information, please contact us on 01865 246 991 or