Introduction to Personal Welfare LPA’s

This will assist you in considering whether or not to make a Lasting Power of Attorney (LPA) for your personal welfare.

Part A explains what a Personal Welfare LPA is and the roles of Attorneys, named persons and the Certificate Provider. It also suggests matters to think about when you are choosing people to take on these roles.

Part B explains about the Personal Welfare LPA form (or instrument) and gives you detailed information on the power and scope of authority you give to your Attorney(s) if you make a Personal Welfare LPA.

Part C explains the process of registering an LPA and the LPA register.

While it is not necessary for you to read the guidance for Attorneys, you may find it useful. The guidance for Attorneys will give you an understanding of what an Attorney is required to do when undertaking their role and contains
information on:

• the Attorney’s duties and responsibilities;

• how your Attorney(s) will assess your capacity before making decisions on your behalf;

• how your Attorney(s) can obtain personal information about you, for example from a bank, doctor or solicitor, to help make decisions in your best interests; and

• how your Attorney(s) should decide what is in your best interests.

Part A – What is a Lasting Power of Attorney, selecting a suitable Attorney, choosing who you want to be notified - named persons, and the Certificate
Provider

What is a Lasting Power of Attorney?

What is an LPA?

A Lasting Power of Attorney (LPA) is a legal document that you (the ‘Donor’) make using a special form. It allows you to choose someone (the ‘Attorney’) you trust to make decisions about things such as your healthcare or finances on your behalf at a time in the future when you may lack the mental capacity to make those decisions yourself.

An LPA can only be used when it is registered with the Office of the Public Guardian (OPG).

Are there different types of LPA?

Yes, there are two different types:

A Personal Welfare LPA, which this guidance talks about, allows your Attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example if you are ill, unconscious or because of the onset of a condition such as dementia. It does not allow your Attorney(s) to make decisions about your Property and Affairs.

A Property and Affairs LPA allows your Attorney(s) to make decisions on your behalf about your property and affairs, including paying your bills, collecting your benefits or other income, or selling your house subject to any restrictions and conditions. It does not allow the person you have chosen to
make decisions about your personal welfare.

Other ways of planning for the future

A Personal Welfare LPA is one way of planning how decisions can be made on your behalf in the future but there are other ways to make choices or express preferences about your care and treatment if you lack capacity in the
future.

You can:

• Write a statement of your preferences or wishes. This is not legally binding but those involved in your care and treatment would be required to take note of the contents as part of any best interests decision.

• If you are receiving health and or social care services, create a care plan. This is a written document that outlines the types and frequency of the long-term care services that a person receives.

• Make an advance decision to refuse treatment. When valid and applicable this is a legally binding document that enables you to specify particular types of treatment you do not want should you lack the capacity to decide this for
yourself in the future. If you make an advance decision to refuse treatment it may become invalid if you later make a Personal Welfare LPA which confers authority on the Attorney(s) to give or refuse consent to treatment to which the advance decision relates.

If you have made an advance decision to refuse treatment it would be wise to seek advice when deciding what powers to give to your Attorney(s) when you make your LPA.

You can seek advice on these matters from health or social care professionals and patient support groups or other relevant organisations that can provide information based on experience of specific conditions or situations.

What will a Personal Welfare LPA let the person I have chosen do on my behalf?

This will depend on the powers that you give them when making your LPA. The person will only be able to make decisions that are in your best interests and these may include significant decisions such as:

• giving or refusing consent to particular types of health care, including medical treatment decisions.

• you staying in your own home, perhaps with help and support from social services;

• you moving into residential housing and choosing the right care home for you. Your Attorney(s) might also make personal welfare decisions about more day-to-day issues, for example about your diet, your dress or your daily routine. This list is only intended to give examples of the types of decisions that can be made on your behalf using a Personal Welfare LPA.

Who can make an LPA?

Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.

Can someone make an LPA on my behalf?

No, only you can make your LPA. However, you can get help in creating your LPA from a legal advisor should you wish.

What are the safeguards?

An LPA is a very powerful legal document and it is important to remember that the person(s) you appoint as your Attorney(s), unless you have included restrictions in your LPA, will have the power to make decisions about your healthcare, welfare and where you live.

When choosing an Attorney, it is important that you are confident that they know what you want and that you are comfortable that they will be making decisions on your behalf. However, there are safeguards to protect you.
Safeguards already built in to an LPA include:

• the requirement that the LPA must be registered with the OPG before use;

• the requirement to identify someone to provide a Part B Certificate confirming, amongst other things, that you understand the purpose of an LPA and the scope of powers you are giving to your Attorney(s);

• that certain persons chosen by you called ‘named persons’ are notified before registration of the LPA;

• the requirement for the signatures of the donor and Attorney(s) to be witnessed;

• the right of specific people (you, the Attorney(s) and named persons) to object to registration of an LPA; and

• your Attorney(s) must have regard to the Code of Practice which provides guidance on the Mental Capacity Act 2005. The Code makes it clear that Attorneys must always act in your best interests.

Optional safeguards include:
• including restrictions or conditions in the LPA, which your Attorney(s) must follow – for example, you may include a restriction that your Attorney(s) cannot make decisions about the treatment of a particular illness you may have; and

• giving guidance in your LPA which your Attorney should take into account when making decisions on your behalf.

What if I have already made an Enduring Power of Attorney?

If you have already made an Enduring Power of Attorney you may want to contact the Furse Sanders & Co for information on how to revoke it or how it can run alongside your LPA.

Do I have to live in England or Wales to make a Personal Welfare LPA?

You do not need to live in England and Wales to make a personal welfare LPA, but you will need to be in England or Wales at the time your Attorney needs to use it.

Please note: An LPA made in England and Wales will not be legally binding for use in other countries including Scotland, the Republic of Ireland or Northern Ireland. It will be up to institutions (such as hospitals) in other countries to decide whether to recognise the LPA.

How do I make an LPA?

You must use a special form known as the ‘instrument’ to make your LPA

The Attorney

What is a Personal Welfare Attorney?

A Personal Welfare Attorney is the person you choose and appoint, using an LPA form, to make decisions on your behalf about your personal welfare. It is an important role and one that the person you have chosen has to agree to take on.

Who can I choose to be my Personal Welfare Attorney?

Appointing an Attorney to make decisions on your behalf is a very important decision. If you want them to, your Attorney(s) will be able to make any decision about your healthcare and welfare where you lack the capacity to do so yourself. Or you can limit the type of decisions they make for you by specifying this in your LPA.

It is important to choose someone you know well, someone you trust to make decisions in your best interests and someone who is happy to take on the role.

You can choose and appoint a family member, friend or anyone willing to act for you, providing they are aged over 18. You can also appoint your spouse, partner or civil partner as your Attorney if you wish.

If you choose your spouse or civil partner, it is important to remember that should your marriage or civil partnership be dissolved or annulled in the future then the LPA will cease, unless:

• you have included a condition within the LPA that your spouse or civil partner can continue to act as your Attorney; or

• you have appointed a replacement Attorney able to replace them; or

• you have appointed Attorneys to act together and independently

An Attorney must always be a named individual and not listed as an office holder or as the name of a solicitor’s firm – for example, you cannot appoint the ‘Director of Social Services’ or ‘Joe Bloggs & Co Solicitors’.

Please note: You can still appoint an office holder but their name must be specified on the LPA form.

Who cannot act as my Attorney?

There are no restrictions on who you can choose to be your Personal Welfare Attorney as long as they are over 18 and their details are written on the LPA correctly.

Can I appoint more than one Attorney?

You can appoint as many Attorneys as you wish, but it is important that you consider how you are appointing them. You will need to specify whether you want to appoint your Attorneys to act:

• together; or

• together and independently; or

• together in some matters and together and independently in others.

You should ensure that you and they fully understand how they have been appointed to act and what that will mean in practice when they are making decisions for you.

In an LPA form ‘together’ means jointly and ‘together and independently’ means jointly and severally for the purposes of the Mental Capacity Act 2005.

What is the difference between appointing Attorneys together or appointing them together and independently?

Attorneys appointed together must always act together. They must all agree before doing anything on your behalf. If one Attorney does not agree with a proposed action, that decision cannot be made. Donors often use this as a safeguard to ensure that all those they trust to make decisions for them are in agreement. However, you must remember that this could delay decisions that may need to be taken at short notice.

Please note: Appointing lots of Attorneys to all work together could mean:

• it is difficult for them to act/make decisions; or

• the LPA could be cancelled if they cannot work together; or

• the LPA could be cancelled if one of them dies or loses the capacity to make decisions as your Attorney.

There is no right or wrong way to appoint your Attorneys to act but these are points for you to think about.

Attorneys appointed together and independently can act on their own and they can act together. This means, for example, that any one of your Attorneys appointed together and independently can decide on a particular issue. This can be useful if one of your chosen Attorneys is not available all of the time to help make decisions on your behalf, for example, if they work abroad for long periods of time.

Also, if one of the Attorneys becomes ill, dies or loses the capacity to act, the LPA will still continue and the remaining Attorneys can continue to act.
You can also appoint your Attorneys to act together in respect of some matters and together and independently in respect of others – for example, you could appoint your Attorneys to act together when deciding where you live but appoint them to act together and independently when deciding on whether to consent to medical treatment.

You will need to set out clearly what these matters are in your
LPA when you appoint your Attorneys.

Please note: It is important to remember that if you do decide to appoint more than one Attorney but do not specify how you are appointing them, they will automatically be appointed together.

What is a replacement Attorney and when might I need one?

Replacement Attorneys are people you can appoint to act in place of an Attorney who is no longer able to or does not wish to make decisions as your Attorney. For example, you may choose your spouse as your Attorney, then choose your son/daughter as a replacement if your spouse should die or can no longer act on your behalf.

You can choose as many replacements as you want. They can act in place of any of your Attorneys but you must set out how they are to be appointed.

As with appointing any Attorney, when appointing a replacement Attorney, you must consider how they are to act, for example solely or together, as already discussed.

If you want to appoint a replacement Attorney, you do so at the time you make your LPA and your replacement Attorney has to sign up to taking on this role like any other Attorney. It is your decision whether to appoint a replacement and it is not a requirement of an LPA that you do so.

Your replacement Attorney(s) can replace any of your chosen Attorneys. The replacement Attorney(s) will play no part in making decisions for you unless they are needed to replace your original Attorney(s).
However, if you have more than one Attorney you can specify who you wish your replacement Attorney(s) to replace or who they cannot replace. You can include a condition when appointing a replacement Attorney(s), stating that the replacement is to replace:

• any Attorney not wishing to or able to carry out their duties;

• a specific Attorney (of your choice), should that Attorney no longer wish to or is not able to act on your behalf; or

• any Attorney not wishing to or able to carry out their duties except a specified Attorney (of your choice).

Please note: You can only appoint a replacement Attorney for your original Attorneys, not additional replacements for the replacement Attorneys.

Who can be a replacement Attorney?

Anyone over the age of 18 can be a replacement Attorney
 
When considering whether you would like to appoint a replacement Attorney, it is important to choose someone you know well and trust to make decisions in your best interests in the same way that you selected your first choice Attorney.

Can my Attorney(s) claim out-of-pocket expenses or charge for their services?

Your Attorney(s) will be able to claim out-of-pocket expenses for things such as telephone calls, postage charges and transport costs that are incurred whilst specifically undertaking their duties as your Attorney. The expenses must be in direct proportion to the size of your estate and the duties they undertake.

However, it is entirely up to you whether you want your Attorney(s) to receive payments/fees specifically for taking on the role of Attorney and acting on your behalf.

Does my Attorney(s) have to live in England or Wales?

No. However, it is important to consider that, if your Attorney(s) lives abroad for significant periods of time or on a permanent basis, they may have problems dealing with some matters, for example if an emergency decision about your health and welfare needs to be made.

Can my Attorney(s) give up their role?

Yes. If your LPA is unregistered your Attorney must give you formal notice to do this. If your LPA is registered the Attorney will need to give formal notice to the OPG and they should notify you too.

Please note: You cannot authorise your existing Attorney(s) to appoint a replacement Attorney if they wish to leave their role. It is your role to appoint a replacement Attorney when you create the LPA, if you wish to do so.

What happens if my Attorney does not act in my best interests?

The Public Guardian is responsible for maintaining the Register of LPAs and so is aware of all registered LPAs. If evidence is presented to the OPG that an Attorney is not acting in the Donor’s best interests, the Public Guardian will consider what, if any, action might need to be taken.

The Court of Protection may also become involved and ask the Attorney to account for all of their dealings and/or cancel the LPA if there is sufficient evidence that the Attorney has not acted in your best interests.

If the Attorney does not perform his or her duties properly, he or she may be ordered to compensate you for any losses. Anyone ill-treating or wilfully neglecting someone they have care of who lacks capacity, or to whom an LPA appointment relates, can be found guilty of a criminal offence. The penalty for such an offence is a fine and/or a sentence of imprisonment of up to
five years.

Helping your Attorney

To help your Attorney(s) make decisions that are in your best interests in the future you should talk to them now and make them aware of any specific views or wishes that you may have. For example, you may want to tell them now that you do not wish to move outside of a particular area when they are looking at your living arrangements in the future.

You can also give your Attorney(s) written guidance in your LPA on what things to take into consideration when making decisions on your behalf but this should be in addition to discussing these matters with them.

If you change your mind about a particular issue and you tell other people, you should always let your Attorney(s) know.

In this way, for example, if your Attorney needs to decide where you should live in the future they will be aware of your views and will take these into account when deciding on a housing situation that is in your best interests.

What happens if my Attorney dies?
If an Attorney dies you have a number of options depending on if your LPA is registered, whether you have appointed a replacement Attorney and whether you still have capacity to choose a new Attorney.

If this situation arises and you still have capacity, you should contact Furse Sanders & Co for guidance on what steps you might need to take next.

Choosing who you want to be notified - named persons

What is a named person?

This is someone you specify on your LPA who you want to be notified when an application is made to register your LPA.

Why do I need them?
Selecting people to notify of an application to register is one of the key safeguards of an LPA.

Listing people, known as named persons, allows you to decide at the time you make your LPA who you would like to be notified that registration of your LPA is taking place. Once notified, if the people you choose have concerns about the registration of your LPA – for example they feel that you were put under pressure to make it – they can object to the LPA being registered.

You are advised to name up to five people if at all possible.
Naming this many people could be particularly useful if in the future one or more of your named persons cannot be contacted. Detailed guidance on how the named persons can object is part of the notice sent to them by the person making an application to register the LPA.

Who should I choose to be notified?

You can select up to five people and it is up to you to select the people you want to be notified. However, it is important to remember that the person/people you choose should know you well enough to be able to raise any concerns they may have about an application to register your LPA.

You can choose family members or friends or, if you prefer, someone else such as Furse Sanders & Co, a health or social care worker that knows you.
Once you have chosen who you would like as your named persons, but before you complete the LPA, it would be wise to make them aware of your LPA and that you would like to choose them to be notified when an application to register is made and explain to them what that means. If they do not want to take on this role it is probably best to choose someone else.

It is very important that you keep the addresses/contact details of your named persons up to date. You should do this on a separate sheet and keep this with your completed LPA. Please note: You must not make any amendments to a completed and signed LPA.

Should I advise my named persons of the person(s) I have appointed as Attorney(s)?

You do not have to. This is your choice. However, making your named persons aware of this information in advance will allow them to raise any queries or concerns that they may have about the LPA with you.
This may help to reduce unfounded objections when the application to register the LPA is made, potentially avoiding extra costs and lengthy delays to the process.

What happens if I do not have or want anyone to be notified?
We advise that you try to include named persons where possible.
However, if you decide not to name anyone or if you do not have anyone suitable to name, then you must have two separate Certificate Providers.

The Certificate Provider

What is a Certificate Provider?

A Certificate Provider is a person that you must select to complete a Part B Certificate of the LPA form confirming that you understand the LPA and that you are not under any pressure to make it.

We recommend also making your named persons aware of your choice of Certificate Provider. This will allow them to raise any queries or concerns that they have about the certificate provider with you. This may avoid unnecessary delays or objections at the point of registration.
Choosing your Certificate Provider is a very important safeguard of an LPA.

Why do I need this certificate?

The certificate is a vital part of the LPA document. Without it, the LPA is not valid and cannot be registered. For this reason, the certificate must not be detached from the LPA.

Who can I choose to be a Certificate Provider?
You can choose two types of Certificate Provider:

Category A

Knowledge certification – a knowledge-based Certificate
Provider is someone that you know personally and has done so for at least two years.

or

Category B

Skills certification – A skills-based Certificate Provider is someone who considers that they have the relevant professional skills and expertise to certify your LPA.

The following are suitable skills-based certificate providers listed on the LPA form:

• a registered healthcare professional (including a GP);

• a solicitor, barrister or advocate;

• a registered social worker; or

• an Independent Mental Capacity Advocate (IMCA).

You can also pick someone not listed on the form. However, they must consider that they have the relevant professional skills and expertise to provide a certificate and be able to specify on the certificate what their relevant professional skills and expertise are. Skills-based certificate providers are entitled to charge a fee for providing the certificate.

Is there anyone who cannot be a Certificate Provider?
You cannot select anyone from the following list to be a Certificate Provider:

• a member of your or your Attorney’s family;

• a business partner or paid employee of yours or your Attorney(s);

• an Attorney appointed in this form or another LPA or any EPA made by you; or

• the owner, director, manager, or an employee of a care home in which you currently live or their family member.

It is important to remember that you must choose a suitable Certificate Provider and that they must complete the Part B Certificate as soon as possible after you fill in and sign your parts of the LPA.

Without the completed Certificate your LPA cannot be registered or used.

Part B – The LPA form and understanding the powers you give in a Personal Welfare LPA

The Personal Welfare LPA

What sort of powers will my Attorney(s) have?

If you make an LPA that does not contain any restrictions or conditions, once the LPA is registered your Attorney(s) will be able to do anything that you can do now in relation to your personal welfare. This might include:

• deciding where your permanent place of residence should be;

• deciding what care and accommodation may be appropriate for you;

• consenting to any medical treatment or procedure or therapy of whatever nature for your benefit and providing access for that, or refusing such consent;

• deciding, alone or with others, on the level of care which you may require;

• making decisions about your dress, diet and personal appearance as appropriate;

• choosing your social and cultural activities;

• arranging for you to undertake work, education or training;

• taking you on holiday or authorising someone else to do so;

• consenting to you being involved in certain types of research that meets the strict rules set out by the Act.

The list above is just to give you examples of the types of powers that are included in a Personal Welfare LPA and it is not intended to be exhaustive.
You may wish to include a condition that your Attorney must act in a certain way or include restrictions preventing your Attorney(s) from specifically making some of the decisions listed above.

It is important when making your LPA that you are satisfied that you have given your chosen Attorney(s) the right powers to enable them to make the decisions you want made about your personal welfare in the future should you lack the capacity to make them yourself.

Will my Attorney(s) be able to use my LPA to access personal information about me?

There may be times when carrying out their duties that your Attorney needs to access personal information about you, for example from a doctor, a bank or solicitor, to help them make a decision that is in your best interests. Most of this information will be personal information about you and much of it will be sensitive and/or confidential.

Provided they are acting within the powers you have given them in the LPA, they are entitled to ask for this information in the same way you would do, subject to some limitations. Where possible they should only ask for information about you that will help them make a decision on your behalf.

Is there anything my Attorney(s) can not do on my behalf?

Your Attorney(s) must only act within the powers you have given them. However, the Act does not permit Attorney(s) to make decisions on your behalf on the following matters:

• consenting to marriage or civil partnership;

• consenting to a decree of divorce being granted on the basis of two years’ separation;

• consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation;

• consenting to place a child up for adoption or consenting to the adoption of a child;

• consenting to sexual relations;

• giving you medical treatment for a mental disorder or consenting to you being given medical treatment for a mental disorder if your treatment is regulated by Part 4 of the Mental Health Act 1983;

• deciding to vote.

What restrictions or conditions can I include in the LPA?

You can include restrictions or conditions in your LPA which allow you to decide which decisions you want your Attorney(s) to make.

Including conditions in your LPA
• You may want to add a condition to your LPA so that your Attorney(s) must act in a particular way. For example, you could say that your Attorney must always talk to a particular person before making a decision about where you live.

You may also want to limit the powers your Attorney has. For example, you could include a restriction that your Attorney can only make decisions about your social care but not about any aspect of your healthcare or vice versa.

Please note: You should think carefully about how you word any restrictions or conditions that you include in your LPA. To ensure that health and social care staff and other professionals can follow them effectively in the future, they should be straightforward, easy to understand and capable of being put
into practice.

If there are any conditions or restrictions that are considered to be too complicated or not practical it is possible that the OPG will need to refer your LPA to the Court of Protection for them to consider cancelling that condition or restriction from your LPA. You should remember that restrictions and conditions are there for your Attorney(s) to follow when making decisions on your behalf and in your best interests. They are not intended to act as statements of your intentions for people other than your Attorney(s) to follow.

You may wish to discuss the types of restrictions and conditions you want to include in your LPA with a health or social care professional.

What about guidance in an LPA?

When making decisions on your behalf, your Attorney(s) must follow any restrictions or conditions you have included in your LPA. But you may also like to include some broader written guidance on your wishes and feelings on particular matters. This will not be binding on your Attorney(s) but may help them when making decisions in your best interests.

Is there any suggested wording for restrictions/conditions?

No, we are not able to provide you with wording for restrictions or conditions. In any particular situation, you may want to seek further advice from health and social care staff such as your GP or a nurse.

What decisions about my healthcare will my Attorney(s) be able to make?

If you give your Attorney(s) the power to make personal welfare decisions without any restrictions or conditions they will be able to give or refuse consent to medical treatment – for example, an operation, a course of treatment or a particular procedure. They will also be able to make decisions about dental or optical care or whether you can take part in particular types of research projects. It is important to remember that treatment is ultimately a clinical decision and your Attorney(s) cannot demand treatment which doctors do not believe is necessary or clinically worthwhile.

If you want your Attorney(s) to have the power to make decisions about ‘life-sustaining treatment’ you have to expressly give your Attorney(s) the power to make such decisions by completing sections 6 and 12 of the LPA form.

If you do not give your Attorney(s) the ability to make decisions about life-sustaining treatment, these decisions will be made by a health professional instead (subject to any valid and applicable advance decision).

What is life sustaining-treatment?

Life-sustaining treatment means any treatment that a doctor considers necessary to sustain your life and it will depend on the circumstances of a particular situation. Examples of life-sustaining treatment might include:

• a serious surgical operation, e.g. a heart bypass;

• receiving chemotherapy, radiotherapy or undergoing surgery to treat cancer; or

• an organ transplant.

But life-sustaining treatment could also include more day-to-day procedures or treatments – for example, a course of antibiotics if you have breathing problems and develop pneumonia.

Whether treatment is life sustaining or not will depend on the situation. The important factor is if the treatment is needed to keep you alive.

Life-sustaining treatment usually also includes artificial nutrition or hydration (ANH). ANH is food and water that is given to someone other than through their mouth, usually through a tube but sometimes directly into the veins.
It does not mean eating and drinking by mouth.

If you allow your Attorney(s) to make decisions about life sustaining treatment this may mean making decisions about whether or not to withdraw treatments, including ANH, in situations where that treatment has become burdensome or is not effective.

How might I become involved research?

If you give your Attorney(s) the power to make personal welfare decisions without any restrictions or conditions they will be able to consent on your behalf to you taking part in particular types of research projects. Research is an important way of understanding illness and disability and of improving the care and support people receive. This could include testing how effective a certain type of care or treatment is in supporting those who may lack capacity, or finding out what caused a condition such as Alzheimer’s disease.
Sometimes this research will only be useful if it involves people who lack the mental capacity to agree to take part, such as investigating what causes conditions like dementia.

The Act allows such research to take place but sets out strict rules to protect people who lack capacity to consent to take part in research and to make sure their current or previous wishes are taken into account.

Will my Personal Welfare Attorney be able to decide where I live?

Yes, unless you include a restriction in your LPA removing that power from your Attorney(s).

Can I still make decisions if my LPA is registered?

Yes. Registration of an LPA does not mean that you lack capacity. You are assumed to have capacity to act unless it is shown that you do not. Your Attorney is always obliged to help you to make as many of your own decisions as you possibly can. If you do lack the capacity to make a decision, your Attorney can act for you in your best interests according to the contents of your LPA.

What happens if I disagree with the decisions my Attorney(s)
is making?

If your Attorney(s) is making decisions on your behalf this means that they believe that you lack capacity. This may be the point you are seeking to challenge. If you are unhappy with your Attorney’s actions and still have the capacity to do so, you can revoke your LPA. If you decide to revoke your LPA you should advise us so that we can update the LPA register.

If your Attorney(s) makes a decision when they believe that you lack the capacity to do so yourself and make it in what they believe to be your best interests, you will need to discuss your concerns with them in the first instance.

If you still feel unhappy with their decision you can contact us and advise us that you believe your Attorney(s) should not be acting or is not acting in your best interests and we will investigate.

Part C – Registering your LPA and the LPA register

Registering your LPA

When can someone use my LPA?

No one other than your Attorney(s) can use your LPA. Your Attorney(s) can only use your LPA when it has been correctly completed, signed, witnessed and has been registered with the Office of the Public Guardian.

When does my LPA have to be registered?

Your LPA can be registered any time after you have made it and cannot be used until it has been registered. The LPA is made when it has been completed and signed by all those who are required to sign.

The benefit of registering the LPA shortly after it is made is that it will be ready to be used by your Attorney(s) when it is needed.

If an application to register your LPA is made a long time before it is needed you may need to look at the registered document from time to time to make sure that the contents are still relevant to your circumstances.

Can I make changes to my completed LPA?

No. A signed, witnessed and certified LPA is a deed.

Please note: You cannot make any changes to the LPA if it has been signed witnessed and certified. If the contact details of your named persons or your Attorney(s) have changed you should record these on a separate sheet and keep it with your LPA.

If you need to change any aspect of your LPA – for example any restrictions or conditions or you want to appoint a new Attorney – you will need to consider making a new LPA. You cannot make any changes to a signed and certified LPA.

Who registers the LPA?

The Attorney(s) or you, as the Donor, can apply to register an LPA, providing the correct forms are completed and the named persons listed on your LPA are notified.

Usually we, Furse Sanders would do this for you.

The LPA register

What is the LPA register?

The LPA register is a searchable database containing the details of all registered Lasting Powers of Attorney. It is important to remember that once your LPA is registered certain pieces of information will be available to anyone who applies to search the register. There is a fee to search the register.

Why does the OPG have a register?

The Mental Capacity Act 2005 sets out the functions of the OPG. One of these is to establish and maintain a register of registered LPAs.

One of the purposes of the register is to allow those with an interest, such as healthcare professionals, to search the register to see whether an LPA has been registered by the OPG for a particular person.

What information of mine will be on the register?

The type of information made available from the register will depend on the type of search that someone applies for. There are two types of search: a first tier and a second tier search, with each providing different levels of information to the applicant.

The first tier search provides limited data about you and your LPA to anyone, on the payment of a fee.

The information provided would include:

• the record number the OPG has given to the registered LPA;

• your name;

• any other/previous names you have;

• the type of LPA you have made: a Property and Affairs LPA or a Personal Welfare LPA or one of each but not the contents of the LPA;

• the date the LPA form was signed;

• the date the LPA was registered;

• whether or not the LPA is still active, for example, has it been cancelled;

• the full names of your Attorney(s);

• how the Attorney(s) are appointed;

• the full name of any replacement Attorney(s);

• whether the LPA contains any restrictions, conditions or guidance but not the details of the restrictions, conditions or guidance; and

• whether or not a note has been attached to the LPA, but no details of what the note says.

The second tier search: Anyone can, on application and payment of a fee, undertake a second tier search.

However, this will require the applicant to explain in greater detail to the OPG why they require the information and to demonstrate that the request is in your best interests.

There is not a defined list of the information that may be disclosed in a second tier search because it will be different in every case, depending on what is required and what is in your best interests.

Objections

Can someone object to the Attorney being appointed?

Only the Donor, the named persons or other Attorneys are able to object to the registration of an LPA.

Objections by a named person(s) or an Attorney(s) will have to be either:

On factual grounds – the OPG can be asked to stop the registration if:

• the Donor is bankrupt or interim bankrupt (for Property and Affairs LPAs only);

• the Attorney is bankrupt or interim bankrupt (for Property and Affairs LPAs only);

• the Attorney is a trust corporation and is wound up or dissolved (for Property and Affairs LPAs only);

• the Donor is dead;

• the Attorney is dead;

• there has been dissolution or annulment of a marriage or civil partnership between the Donor and Attorney (except if the LPA provided that such an event should not affect the instrument);

• the Attorney(s) lack the capacity to be an Attorney under the LPA; or

• the Attorney(s) have disclaimed their appointment.

On prescribed grounds – objections to the Court of Protection against registration of the LPA can only be made on the following grounds:

• that the power purported to be created by the instrument is not valid as an LPA for example, the person objecting does not believe the Donor had capacity to make an LPA;

• that the power created by the instrument no longer exists – for example the Donor revoked it at a time when he/she had capacity to do so;

• that fraud or undue pressure was used to induce the Donor to make the power; or

• the Attorney proposes to behave in a way that would contravene his/her authority or would not be in the Donor’s best interests.

The OPG will require appropriate evidence to support any factual
objection raised. Objections by the Donor do not need to be on any specific
grounds.

If the OPG or the Court receive an objection to your application to register an LPA, they will contact you to advise what steps you need to take next.

Care of the Elderly

Lasting Powers of Attorney (Welfare)

Lasting Powers of Attorney (Property)

Tax Compliance

Charities

Administration of Estates

Trust Administration