1. Are Enduring Powers of Attorney (EPA) still valid?

EPA’s were replaced by LPAs on 1st October 2007. However, if a person made an EPA before 1st October 2007, either registered or unregistered, it can still be used. EPAs only allow a person to appoint an Attorney to make Property and Financial decisions on their behalf. If a person still has mental capacity they can replace the EPA with an LPA for Property and Financial affairs. A person can also set up an LPA for Health and Welfare if they have mental capacity.

 

  1. Do I need to register an EPA?

An EPA only needs to be registered when the Donor (the person who made the EPA) has lost mental capacity. This is the responsibility of the Attorney to make an application for Registration with the Office of the Public Guardian. Notice must be given to the Donor of intention to register the EPA together with Notice to three other members of the donor’s family.

 

  1. What is Section 5 of a Health and Welfare LPA?

This is the life sustaining treatment page. You will need to confirm here what sort of treatment you want or not, including feeding tubes, resuscitation and other medical treatments. Nothing illegal can be put here such as assisted dying.

If this page is not completed the LPA will be invalid and a new form will then need to be completed before registration takes place.

 

  1. I have an LPA but have moved or my attorney has moved can I update my address?

Do not make any amendments to the LPA form as this will invalidate it. The Office of the Public Guardian (OPG) will need to be notified of any change of addresses. To do this you will need to write to the OPG including the reference number, Donors full name and DOB. The OPG will then update their system. Third parties will also need to be informed of any change of address for any persons named in the LPA’s.

 

  1. I’ve changed my name and it no longer matches the LPA documentation?

Again, do not make any amendments to the LPA form as this will invalidate it. You will need to send your original marriage certificate or deed poll to the Office of the Public Guardian and they will update their records.

 

  1. Can I change or amend an LPA if I notice a mistake?

An LPA can be amended before the Donor signs the form. A cross can be put through the mistake and the correction made with the relevant people signing and dating next to the correction.

Once the form has been signed by the Donor any amendments to be made will result in a new form having to be completed and signed by the Donor and other parties to the form.

 

  1. Do I need to do anything with the LPA form if someone passes away?

The Office of the Public Guardian needs to be informed of the death of a donor, attorney, replacement attorney, deputy or guardian of an Enduring or Lasting Power of Attorney.

 

  1. Can anyone be an attorney?

The person must be over the age of 18 and understand the responsibility involved. Try to choose a person who is good at managing money to help with managing your finances.

If a person is declared bankrupt they cannot be appointed as attorney. You should choose a person you trust whether this is a family member or friend or a professional such as a solicitor.

 

  1. What is a Certificate Provider and who can be one?

The Certificate Provider makes sure you are able to understand what you are signing and not being forced into it. They must be independent of the application, not related to the donor or attorney, over the age of eighteen years and have known the donor well for at least two years. A professional such as a solicitor or doctor can sign as Certificate Provider.

 

  1. Who can be a witness?

For the Donor your witness must be someone aged over 18 and not an Attorney or replacement attorney. The Attorneys signature must also be witnessed by someone over 18 but not the Donor, however, they can witness each other’s signatures. The certificate Provider can be a witness for the donor and attorneys.

 

  1. When should I register my LPA?

The LPA cannot be used until it is registered, so it is a good idea to register it as soon as possible. It might be that once registered it is kept in safekeeping until such time as it is needed but at least it will be ready to be used. Registration currently takes around 20 weeks so it is a good idea to have the LPA in place and registered ready for use.

Also if there are any issues with the LPA this will be picked up at registration and can then be rectified. If the LPA is left unregistered and mistakes are noticed at registration a new LPA form will need to be completed and if the Donor no longer has mental capacity the form will not be able to be processed.

 

  1. Am I entitled to Remission or Exemption?

You can apply for remission or exemption if your income is lower than £12,000 per year, or are on means tested benefits. You will pay half the registration fee or nothing at all if you are accepted for remission or exemption.

 

  1. When can attorneys start acting?

For a Health and Welfare LPA your attorney can only act if you no longer have the necessary mental capacity to make your own health decisions. Up until you lack mental capacity you will make all decisions about your health and welfare yourself.

For a Property and Financial LPA, if stated in the document your Attorney can act on your behalf as soon as the LPA is registered. Once your attorney starts acting you will still be able to manage your financial affairs and this doesn’t mean you no longer have a say about your affairs. It just means that you have extra help to make decisions if you need it. If you have chosen that your attorney only acts when you lose capacity then this is only when they will be able to step in and help. Your attorneys are bound by the principles of the Mental Capacity Act.

 

If I or a colleague can assist you with the planning of your affairs then please feel free to contact us by calling 01206835261 or contact us.