Lasting Power of Attorney

A Lasting Power of Attorney serves the same purpose as a Durable or Enduring Power of Attorney.

Regardless of the official term for this document in a country or jurisdiction, the purpose is to empower your agent or attorney to make decisions on your behalf when you are no longer able to do so i.e. become incapacitated.

It therefore has lasting or enduring power. (In Scotland for example, the wording "Continuing Power of Attorney" is used.)

So, unless your document specifically states that it is lasting or enduring, it will expire when you become incapacitated.

Note: ALL Power of Attorney documents expire upon death of the donor or principal regardless of the words used OR if revoked before that. (If we are to be pedantic then we could examine irrevocable POAs too. However, it is not relevant in this context.)

Sidebar: We also provide:

• Limited Power of Attorney templates
• Revocation Template
• POA for childcare etc.

Please visit our main Power of Attorney page for links to the above free forms.

• If your are from England and Wales - read on. The information following here is specifically compiled for you. (However, a lot of the guidelines can also benefit you even if you're from elsewhere in the world!)
• If you are from anywhere else in the world, this page is for you: Durable Power of Attorney.
• And this is the official resource for our visitors from Scotland.

Let's take a simple step-by-step look at the requirements and procedures to create a valid legal document so you'll have a good overview of what you need to consider and must have in place before you start.

There's quite a bit of information to review, but it can all be done in bite-sized chunks so don't feel overwhelmed.

Important information regarding the term: Enduring Power of Attorney

This used to be the accepted term (in England and Wales) for this document until 1 October 2007, but that has been replaced by the term Lasting Power of Attorney (LPA). Your document worded "enduring" is still valid and you can still register it if it was made and signed before this date.

Before either can be used, they must be registered with the Office of the Public Guardian. (More information on registration a bit later on and how this offers protection to you. We'll also give you links to guidelines and all the free forms.)

Going forward, you now have a choice of two documents that you can create. You cannot combine them into one.

1. LPA for Property and Financial Affairs - Can be used as soon as it is registered i.e. whilst the donor is still fully capable and lasting when the donor becomes incapacitated.

Once registered, it does not mean that you cannot continue to make your own decisions or handle your own affairs. If you are mentally capable, your attorney cannot overrule your decisions and must follow your directions (whether he agrees or not).

2. LPA for Health and Welfare - Can be used after registration but only if/when the donor becomes incapacitated.

The decisions taken here affects your health care, medical treatment, diet etc.

The most important consideration relates to life-sustaining treatment and on the official forms you MUST specify whether your attorney has the authority to make that decision. This particular provision must be signed and witnessed by an independent person.

You need to create this legal document whilst you still have mental capacity.

There are 3 parts to the document:

PART A

You will identify yourself as the person giving this lasting power of attorney i.e. the donor.

Choose and Name Your Attorneys

Decide on the person or persons (or Trust Corporation) whom you wish to appoint as attorney(s). They must be 18 or older and mentally competent. For property or financial affairs, they must also be solvent (not bankrupt).

Discuss it with them to confirm that they are willing to act as attorneys. You will need their full legal names, date of birth, address and postal code.

The fact that the person is called "attorney" in the legal document, does not mean the person is a solicitor or lawyer. (In the USA the person may be called your Agent or Attorney-in-Fact).

Decide whether you want to nominate replacement attorneys should your initial appointees not be able to act for whatever reason. Decide and stipulate in writing when replacements may start acting, e.g. when no original appointed attorneys remain, and in what order replacements must fill "vacancies".

Come Decision Time - Who's Got the Power

You have to specify on your form, whether you want your attorneys to make decisions:

• Jointly - That means they must always agree on everything. Think about this practically. For example, some banks may not accept more than one person to act on your behalf. Also, if one of them cannot act any longer, your document will expire since the remaining one cannot make decisions independently. So both of them will have to be replaced by your nominated replacements.
• Jointly and Severally - That means they can act together and/or they can make decisions independent of one another, whichever way they choose to do it.
  
  Be careful not to make contradicting statements on your form. For example, if you specify at first that your attorneys can make decisions jointly AND severally, you cannot then issue an instruction (which is legally binding) that when it comes to selling your house or assets or making investments, the decision must be made jointly only.
  
  There is a third option provided on the form to achieve the above variation ...
• A Combination of the Two - You can specify which decisions must be made jointly and which can be made independently of one another. Examples:
  
  When selling my house or assets and when making investments in real estate, my attorneys must make the decision jointly but all other decisions can be made jointly and severally.

Lasting Power of Attorney - Adding Restrictions

Restrictions are legally binding and must be complied with by your attorney.

• LPA for Property and Financial Affairs examples:
  
  Accounting records must be submitted bi-annually to ...
  
  Loans to my family members or investment in their business activities must be interest free but must not exceed the amount of ...
  
  This Lasting Power of Attorney for Property and Financial Affairs must only be used if I lack mental capacity ...
  
  If you already have a Last Will and Testament in place, you could consider adding restrictions regarding property which you bequeathed. Example: My stamp collection is specified as a bequest in my will and therefore may never be sold or alienated.
• LPA for Health and Welfare - examples of restrictions:
  
  My attorneys must inform medical personnel that I do not want life-sustaining treatment to continue if I am in a permanent vegetative state.
  
  My attorneys must not consent to any blood transfusions or organ transplants.

Adding Guidelines

Guidelines are not legally binding but serve to make your wishes known to your attorneys and can help them with their decision making.

• LPA for Property and Financial Affairs examples:
  
  Consult with Mr Smith, the owner of ABC Gallery at this Address before selling any paintings or sculptures in my collection.
• LPA for Health and Welfare - examples of guidelines:
  
  If I am placed in a health care facility it must be close to my daughter.
  
  I wish to be cared for by male health care workers only.

Payment to Your Attorney

If you appoint professional persons (solicitor or account) as your attorneys, they will normally charge a fee.

If you appoint a non-professional (family member or friend) they will only be entitled to reimbursement of any expenses incurred on your behalf, unless you specify differently.
Example:

My attorneys shall each be paid from my funds the sums of £500 on the first day of January and again £500 on the first day of July for the duration of their duties as attorneys.

Who to Inform when Application for Registration is Made

You can nominate up to 5 persons that must be told when your Lasting Power of Attorney will be submitted to the Office of the Public Guardian (OPG) for registration. The people that you nominate must not be your attorneys or any nominated replacement attorneys.

This is another safety measure that is there for your protection. It's not mandatory though and you can choose not to have this in your document.

Choose Your Witness

You need a person who must witness your signature. In other words, you must sign the document in front of this person.

This person must be 18 or over, mentally competent and must not be related personally or professionally to any person or Trust Corporation named as attorney anywhere in your document. It can be the same person who must be told (as discussed above) or who will sign your certificate (see next paragraph). You will need this person's full names and address.

PART B

Who Will Sign the Certificate

The official template issued by the OPG requires a person to sign the certificate provided, certifying that the document was executed legally, i.e. the person who made it (the donor) is mentally capable and did not act under duress.

However, if you opted not to have anyone told about pending registration, you will need two people to complete and sign this declaration.

Any such person must have known you personally for at least two years. Example: I have known John Smith for the past 8 years, playing cards together every Wednesday. Or this person must be a professional (doctor or solicitor) qualified to make an assessment and declaration.

Most importantly, they must be totally independent and not related in any way to you or an appointed attorney or replacement attorney or Trust Corporation named in you document. Example: no family members, directors, employees, business partner, anyone involved at your care home (extended to their families too) etc.

PART C

Declarations by your Attorneys and Replacement Attorneys

Every person named or nominated as attorney must sign this declaration, so you need to print or make a copy for each person.

They must sign in the presence of a witness who can be any person 18 or older and mentally competent except it cannot be witnessed by the donor (the person giving the power of attorney). You will need the full names and address of the witness.

Let's Get It In Writing

Get the paperwork done. Download your Lasting Power of Attorney forms from the OPG website (links at the end of this page). You can save it to your computer and start entering the details. No need to complete it all in one session - you can save it as you go along.

Print your final document, ready for adding the dates and signatures.

Signatures MUST be Done in the Following Order!

• 1. The donor signs first in the presence of the witness, who also signs in the witness section.
• 2. The certificate providers sign next - those people identified in PART B above.
• 3. The appointed attorneys and nominated replacement attorneys sign in the presence of the witness, who also signs in the witness section.

AND THAT'S IT!

Your Free Resources:

Lasting power of Attorney Forms and Guidance from the OPG website

Forms are also available in large print, Welsh versions and blind persons can request the documents in Word format. Click here for their Contact details. If you need any further help, contact them on the telephone number listed there. Whilst they cannot give you legal advice, they can give you guidance on completing the forms.

The Registration Process

Remember, you need to register your Lasting Power of Attorney with the Office of the Public Guardian before it can be used.

Step 1: Notice of Intention to Apply for Registration of an LPA

Whoever is applying for registration - donor or attorneys - must complete this form. They must then send it to every person named in the LPA who must be told about registration.

Those people once told, then have 5 weeks to object to registration. Incidentally, the donor can also object if he did not make the application. Various objection forms are available for this purpose. (Follow the relevant links listed in the resources above.)

Step 2: Application to Register a LPA

This application form must be completed and signed by the applicant. Note: If the attorneys are applying for registration and it is specified that they have to make decisions jointly, then all so jointly appointed have to sign the application form.

The form is then sent to the Office of the Publican Guardian at their offices in Birmingham, together with:

• The completed Lasting Power of Attorney document;
• The fee payable for registration (2012 fee is £130 per LPA). You can apply for a remission or reduction of this fee.

Step 3: Examination of the Documents by the OPG

They may query details or reject incorrectly completed forms. They will also inform either the donor or the attorney i.e. the party who did not make the application for registration - another safety measure.

If everything is in order, they will record the LPA in their Register and validate every page with the Office of the Public Guardian stamp and send it back to the applicant. (An LPA not duly stamped is not valid and cannot be used.)

The registration process can take 6 weeks and even longer. You should register your Lasting Power of Attorney as soon as you've completed it. Furthermore, if you leave it too long, some of the details may change and you may need to start anew.

Note: If you need a Power of Attorney to assist an elderly person who is not mentally competent anymore to execute the document, you need to follow a different route: Contact the Court of Protection to empower someone to make decisions on their behalf.

Required Notices to the OPG from Time to Time

Notify them when a replacement attorney starts acting as attorney so their register can be updated.

The LPA expires automatically when the donor dies, but you also need to notify them. You must send the now expired LPA as well as the donor's death certificate.

You can cancel or revoke your LPA at any time - before or after registration - if you have the mental capacity to do so. You need to complete a Deed of Revocation.

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