Lasting Power of Attorney (LPA) – A few things to be aware of

LPA – An Introduction

A Lasting Power of Attorney, or LPA, is a legal document that allows you to appoint a person, or persons, to make decisions regarding health & welfare and property & financial matters on your behalf.

In order to make an LPA you must be aged 18 or over and have the mental capacity to appoint an attorney to manage your affairs on your behalf. There are many reasons for making an LPA and some of these have been discussed in our previous blog “G8 Dementia Summit 2013: time to consider a power of attorney?” written by Anthony Fairweather (Professional Deputy).

Signing the LPA

When you have decided who to appoint as your attorney or attorneys, the LPA must be signed in a specific order.

The donor (the individual who is making the LPA) signs first. The LPA must then be signed by a Certificate Provider, who signs to confirm that the donor has the mental capacity to make the LPA and that there is no fraud or undue influence being exerted on the donor. The Certificate Provider is either a professional who has knowledge of the Mental Capacity Act 2005, or someone who knows the donor well.

Finally, the LPA is signed by the attorneys and replacement attorneys who will manage the donor’s finances or make decisions on their behalf.

In order to avoid complications and to enhance the efficiency of processing the LPA, all parties can sign and date on the same day. If any of the individuals are unable to sign on the same day, the LPA can be signed separately, or on different dates, but it must be signed and dated as indicated in the above order to avoid rejection by the Office of the Public Guardian when it considers whether the LPA can be registered.

Details of the first two attorneys and/or the first replacement attorney will be on the LPA form. If you are appointing a third attorney, or more than one replacement attorney, their details will be given on a separate “A1 Continuation Sheet, which is usually attached to the back of the LPA form. This sheet must be signed by the donor and dated on the same date as the LPA form, and it is important that this is not overlooked.

Amending the LPA

We do not recommend that you amend a completed LPA as the Office of the Public Guardian can be very strict upon considering any alterations. If there are any major amendments to be made the best way to do this is to complete a fresh copy.

If only very minor alterations are required, such as minor spelling mistakes, you may cross through the error on the form and write the correct wording next to it. Please make sure that the amendments are initialled by the person who made the amendments, as well as the person witnessing their signature. This is a vital safeguard to avoid abuse of the powers.

Once the completed LPA form has been sent to the Office of the Public Guardian for registration no more amendments are allowed. If you wish to change the LPA after it has been submitted, you will have to complete a new one and incur the cost of a registration fee that is usually non-refundable.

Certificate Provider

Care should be taken when considering who to nominate as the certificate provider. In particular, you must be aware that this cannot be a close family member. The Office of the Public Guardian has refused to register a LPA where the certificate provider was the fiancée of the donor’s child. However, any other friend, colleague or neighbour who has known you for over two years can act as your certificate provider, but please make sure that the certificate provider indicates how many years he or she has known you and also in what capacity.

It is often advisable for a professional certificate provider to certify capacity if the donor has a diagnosis of some form of mental impairment, such as dementia.

Certifying copies of the registered LPA

Banks and financial institutions will not accept a copy of a registered LPA unless it has been certified as an exact copy on each page of the document. Contrary to popular understanding, copies of a registered LPA do not have to be certified by a solicitor. As long as the donor has mental capacity, he or she can certify the document.

If you wish to certify the registered LPA yourself, then you must certify every single page of the copy at the end of the page with your signature and date, and the words “I certify that this is a true and complete copy of the corresponding page of the original”.  On the last page of the LPA you must sign and date in the same way with the words “I certify that this is a true and complete copy of the original”.

More general information regarding Lasting Power of Attorney can be found on https://www.gov.uk/power-of-attorney/overview; and detailed information regarding preparation and registration of a Lasting Power of Attorney is provided by the Office of the Public Guardian here.

Contact a specialist solicitor

If you would like specific guidance and assistance in respect of choosing your attorneys, or who to approach as certificate provider, then please contact Anthony Fairweather.

Further reading

• Factsheet: Lasting Power of Attorney – an overview
• Factsheet: Lasting Power of Attorney for Property and Financial Affairs
• Factsheet: Lasting Power of Attorney for Health and Welfare
• Wealth, Health and Inheritance Briefing – view the latest edition and sign up for regular updates
• Family Wealth blog – for news and articles

Services you might be interested in

• Power of Attorney
• Making a Will
• Living Wills and Advance Decisions