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No one wants to imagine a time when your health is not as good as it is today. Unfortunately, according to the World Health Organisation, there are around 50 million people globally with dementia, and there are nearly 10 million new cases every year.

It is important to consider who will make and deal with important decisions on your behalf if you lose the capacity to do so yourself. This could include managing your finances and making decisions about your health, care or welfare. Our expert power of attorney solicitors can help you plan for challenges you may face in the future.

Lasting Powers of Attorney

A Lasting Power of Attorney (LPA) is a legal document that lets you select one or more people to help you make decisions regarding your property and financial affairs or health and welfare. This means that you have more control over what happens to you if you can’t make decisions yourself, such as following an accident or illness.

If you have not made an LPA and lose the mental capacity to manage your affairs, it may be necessary for the Court of Protection to appoint a deputy to make decisions in your best interests. This involves greater formality and expenses.

There are two types of lasting power of attorney, property & financial affairs and health & welfare. Our specialist lasting power of attorney solicitors will meet with you to consider in detail your wishes regarding appointing attorneys and can recommend the best type of power of attorney for your requirements.

Property and Financial Affairs Lasting Power of Attorney

A Property and Financial Affairs LPA is an opportunity to appoint someone you can trust to look after your financial affairs if you become unable to do so. For instance, if you require residential care, your attorney will be able to deal with all the financial arrangements and can let your sell your home.

You also have the opportunity to name replacement attorneys to act for you if your first named attorneys are unable to.

What is the process for a Property and Financial Affairs LPA?

Once we have taken your instructions, we will prepare the LPA for you and your attorneys to sign. It is also necessary to have someone to provide a certificate in the LPA, to confirm that you understand the nature and scope of the Property and Financial Affairs LPA, that you are not being put under pressure to sign it and that there is no other reason to prevent it being granted. The certificate provider can be either someone who has known you well for at more than two years, or a professional experienced in assessing mental capacity, such as a doctor or lawyer.

A Property and Financial Affairs LPA is also an important consideration if you run your own business, to ensure that it can continue to operate if you become mentally incapable. We can advise you on the requirements particular to your business to put in place the necessary safeguards.

Health and Welfare Lasting Powers of Attorney

A lasting power of attorney (LPA) is a legal document that lets you select one or more people to help you make decisions regarding your health and welfare when you are unable to make those decisions yourself. This includes decisions such as consenting or refusing medical treatment and making arrangements for your care. Making a Health and Welfare LPA means that you have more control over what happens to you if you become lose mental capacity, such as following an accident or illness.

The attorneys you choose for health and welfare may be the same attorneys who you wish to look after your property and financial affairs, or they may be different. It is important to choose someone with the right skills to make decisions about your personal welfare and we will meet with you to consider in detail your wishes.

You also have the opportunity to name replacement attorneys to act for you if your first named attorneys are unable to.

What is the process for a Health and Welfare LPA?

The process is the same as explained above for Property and Financial Affairs LPAs.

Once appointed, your attorneys can only make decisions on your behalf if you do not have the necessary mental capacity to make those decisions yourself. Any decision your attorneys make must be in your best interests.

How long does it take to get lasting power of attorney?

Once we have met with you and taken your instructions, we will prepare the LPA for your approval and signing. LPAs cannot be used until they have been registered with the Office of the Public Guardian (OPG). We recommend that once all parties have signed the LPA, the LPA is then registered with the OPG so that it is ready for use if and when required. The registration process can take 6-10 weeks.

Enduring Powers of Attorney

Since 2007, it has not been possible to make an Enduring Power of Attorney (EPA) to deal with financial affairs. They have been replaced by Lasting Powers of Attorney (LPAs). However, an EPA made before 1 October 2007 will still be valid.

An attorney under an EPA has a duty to register the EPA with the Office of the Public Guardian if the attorney believes that the donor (the person who made the EPA):

  • is becoming; or
  • has become mentally incapable of managing their own financial affairs.

How can we help with registering an EPA?

If you are an attorney under an EPA, our power of attorney solicitors can assist you with the registration process. Completion of the forms can be time consuming and it is imperative that the paperwork is accurately completed, otherwise the application may be rejected.

We will be pleased to guide you through the process and advise you on any other matters connected with your appointment as an EPA attorney.

What is the process and cost for registering an EPA?

Before applying for registration, the attorney must give formal notice both to the donor and to at least three relatives of the donor. All the notices must be on the prescribed form. There is an order of priority to determine which relatives must be given notice of the application.

The application is made to the Office of the Public Guardian. There is an application fee of £82.

How long does it take to register an EPA?

Once we have taken your instructions and submitted the application for registration, the Office of the Public Guardian will allow a period of approximately 5-6 weeks to elapse before registering the EPA. This period allows for anyone who has received notice of the application, including the donor, to raise objections.

Powers of attorney disputes

Acting as an attorney for someone else under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) can be challenging and attorneys must always act the donor’s “best interests”.

We understand that sometimes working with a co-attorney is not always straightforward as you may have very different opinions or ideas about how to deal with matters.

Friction can also arise between attorneys and the friends, relatives of the donor (or others) about what decisions should be made.

What types of power of attorney disputes can occur?

Common areas of dispute include:

  • Who should be the attorney(s)
  • Whether the donor has lost the capacity needed to make certain decisions
  • How the donor’s money should be spent or invested
  • Fees (if they are a professional attorney) or claims for expenditure
  • The sale of the donor’s assets
  • Attorneys making gifts from the donor’s money or assets
  • The donor’s will or whether they need a statutory will
  • Where the donor should live or what care they may require

There are a number of ways in which disputes involving attorney of LPAs and EPAs can be resolved.  These include adopting Alternative Dispute Resolution (ADR) which includes mediation and different types of negotiation.

However, there are also cases which may require the Court’s involvement.  This may be to determine the outcome of a dispute or for an attorney to be removed and/or replaced.

How can we help with challenging a power of attorney?

Our specialist team of power of attorney solicitors can assist with resolving attorneyship disputes and making applications to the Court of Protection.

We offer a free initial 30-minute telephone consultation.

Frequently Asked Questions

Anyone aged 18+ with mental capacity. It is important to choose someone with the right skills to make decisions about your finances in your best interests. Often attorney(s) will be a spouse, family member, close friend, or a professional with the relevant experience and skills, such as a lawyer or accountant.

You choose what decisions the attorney(s) can make on your behalf when you make the LPA, and whether their decision-making should be subject to certain restrictions or conditions. This includes whether your attorney(s) may act for you as soon as the LPA has been registered with the Office of the Public Guardian (OPG), or if they may only act if you have lost the mental capacity to manage your finances.

The current fee is £82.00.

Yes. If anyone believes that attorney(s) are not acting in a person’s best interests, concerns should be raised with social services, the OPG, and/or the police, depending on the severity of the situation.

  • Buying or selling your home.
  • Making or selling investments.
  • Paying bills and management of bank accounts, pensions and state benefits.
  • Where a person should live to receive care.
  • Day to day care arrangements such as a person’s diet or daily routine.
  • Consenting or refusing to medical treatment.

A Lasting Power of Attorney can only can be used once it has been registered with the Office of the Public Guardian (OPG) and if the person making it (the donor) cannot make decisions of this nature for themselves.

A very important point to note is that your attorneys under a Health and Welfare LPA may not make decisions regarding life-sustaining treatment unless you specifically authorise them to do so.

An Advance Decision allows you to refuse specified medical treatment at a time in the future when you can no longer make that decision for yourself. A Health and Welfare LPA allows you to give general authority to your attorneys to consent to or refuse life-sustaining treatment; it is not necessary to specify a particular treatment.

If you have made an Advance Decision, and then make a Health and Welfare LPA and give your attorneys this general authority, the Advance Decision is revoked. However, it will continue if you do not give your attorneys this general authority under a Health and Welfare LPA.

Your powers as an attorney are restricted while registration is taking place. You may maintain the donor or prevent loss to his estate, for example, by paying care home fees, or insuring his property.

The original EPA document is returned, endorsed by the OPG to show that it has been registered. If the EPA has already been registered with the various banks, building societies and other organisations, it will be necessary to re-register the EPA with them once it has been returned by the OPG.

Provided your EPA was correctly created and signed, it will allow your attorneys to deal with your financial affairs. However, a Property and Financial Affairs LPA offers more flexibility as there is the opportunity to appoint replacement attorneys, and to give your attorneys guidance and instructions regarding how they should deal with your assets.

An EPA does not cover health and welfare decisions and therefore making a Health and Welfare LPA is an important consideration.


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