Lasting Power Of Attorney FAQs
Frequently Asked Lasting Power of Attorney Questions
Below is a list of commonly asked Lasting Power Of Attorney FAQs.
What is a Power of Attorney?
A Power of Attorney is the only legal way for a person to appoint someone to act on their behalf to make financial decisions should they lose mental capacity at some point in the future.
What decisions can an Attorney make?
Under a Property and Financial Affairs Power of Attorney. Attorneys can make decisions about buying/selling a Donor’s property. They can access the Donor’s bank accounts and claim the Donor’s benefits and pensions.
Under a Health and Welfare Power of Attorney. Attorneys can give/refuse consent to particular types of health care, decide whether the Donor stays in their own home or moves to a care home. And choose the right care home for the Donor.
How can I check if a Power of Attorney is registered?
You can contact the Office of the Public Guardian which keeps a register of Lasting Powers of Attorney.
What if my Attorney dies?
Before registration: you can make a new Lasting Power of Attorney and choose a new Attorney. But only if you have the capacity. After registration: If you only have one Attorney and no replacement Attorneys your Lasting Power of Attorney becomes invalid. If you have a replacement Attorney then they will take over.
Can my Attorney charge for acting for me?
Your Attorneys do not have to be paid however you can decide an amount to pay them. If you have multiple Attorneys you can choose to pay them differently. Attorneys can claim reasonable out of pocket expenses incurred when acting on your behalf.
Can a Property and Financial Affairs Attorney Decide About Where I Live?
No a Property and Financial Affairs Attorney can only make decisions about your finances and property.
Can I stop being an Attorney?
You can choose to stop acting as an Attorney at any time. If the Lasting Power of Attorney is registered you will need to complete form Lasting Power of Attorney 005 disclaiming your appointment and send this to Office of the Public Guardian.
Who will replace me if I stop acting as Attorney?
A replacement Attorney if the Donor has specified one in the Lasting Power of Attorney
Can another Attorney be added once the Power of Attorney is registered?
No. However if the Attorney still has the capacity to cancel the existing Lasting Power of Attorney, they can do so and create a new Lasting Power of Attorney appointing a new Attorney.
Do I need to let the Office of the Public Guardian know I’m acting as a Replacement Attorney?
Yes. You must return the Lasting Power of Attorney to the Office of the Public Guardian with a note of the change so that they can update the Lasting Power of Attorney register. If this is not done the Replacement Attorney may be unable to act.
If the Power of Attorney becomes invalid can the Donor make another one?
Yes but only if they still have the capacity to do so.
What happens to the Power of Attorney when the Donor dies?
The Lasting Power of Attorney will be terminated. As Attorney, you should send the LPA and a Death Certificate to the Office of the Public Guardian. The Office of the Public Guardian will not give advice on how to deal with the Donors estate.
What if there is an objection to me being appointed as an Attorney?
The Donor, the people to be told or other Attorneys can object to the registration of a Lasting Power of Attorney.
Other people can object to registration but to do so they must pay a court fee. Objections by a person to be told or an Attorney must be made on factual grounds.
The Office of the Public Guardian can be asked to stop the registration through an objection if:-
- The Donor is bankrupt or interim bankrupt (Property and Financial Affairs LPA only)
- The Attorney is bankrupt or interim bankrupt (Property and Financial Affairs LPA only)
- The Attorney is a Trust Corporation and is wound-up or dissolved (Property and Financial Affairs LPA only)
- The Donor is dead
- The Attorney is dead
- There has been a dissolution/annulment of a marriage/civil partnership between the Donor and Attorney (except if the Lasting Power of Attorney provided that such an event should not affect the instrument)
- The Attorney(s) lacks the capacity to be an Attorney under the Lasting Power of Attorney
- The Attorney(s) have disclaimed their appointment
Objections to the Court of protection against registration of the Lasting Power of Attorney can only be made on the following grounds:-
- That the power is not valid as a Lasting Power of Attorney, for example, the person objecting does not believe the Donor had the capacity to make the Lasting Power of Attorney
- The power no longer exists, for example, if the Donor revoked it at a time when they had the capacity to do so
- Fraud or undue pressure was used to induce the Donor to make the power
- The Attorney proposes to behave in a way that would not be in the Donor’s best interest
The Office of the Public Guardian requires appropriate evidence to support any factual objection raised.
What if I want to register my Property and Financial Affairs Power of Attorney but don’t want my Attorney to act until I lack capacity?
You can include a restriction stating how the Attorney must demonstrate this. For example “my Attorney(s) must not use my Lasting Power of Attorney until they have obtained medical evidence that I have lost mental capacity”.
If the Donor requested that the Power of Attorney is only to be registered upon loss of capacity, does medical evidence need to be supplied to the Office of the Public Guardian on the loss of capacity?
No, the Office of the Public Guardian will not need evidence. But as happens with all Lasting Power of Attorney registrations they will notify the Donor on receipt to give them an opportunity to object to the registration.
Are two separate fees payable if I am registering both types of Power of Attorney?
Yes, you must pay a registration fee for each power o attorney you apply for.
What if the Donor or Attorney(s) can’t afford the registration fee?
The fee is usually paid from the Donor’s assets but if you can’t afford the fee you can ask to postpone or waive payment.
Where can I get extra copies of the registered Power of Attorney?
The Office of the Public Guardian can supply office copies of the original Lasting Power of Attorney document and may charge a fee.
Can I still register with the Office of the Public Guardian if the original Power of Attorney is missing?
The Office of the Public Guardian won’t usually accept an application to register without the original Lasting Power of Attorney form. They may, however, consider registering a ‘certified’ copy – a copy signed on every page to show it is a true copy and not tampered with in any way. It is usually possible for the company who prepared the Lasting Power of Attorney to certify the copy. When sending a certified copy it is also required to send a written statement explaining how the original was lost.
Who is a certificate provider?
Someone who can confirm the Donor has the full mental capacity and understands what giving Power of Attorney means. A certificate provider can be someone the client has known for at least two years. Or someone with relevant professional skills to assess their capacity such as a Doctor, Nurse, Financial Adviser, Will Writer or Solicitor.
As a certificate provider can I discuss the Power of Attorney with the Donor with Attorney present?
If at all possible you should discuss the contents of the Lasting Power of Attorney with the Donor not in the presence of the chosen Attorney(s) in order to form your opinion. The Donor must be able to communicate with you freely.
What happens if the Power of Attorney cannot be registered?
If the Donor does not have the capacity to make another Lasting Power of Attorney, the Attorney or another relevant person can apply to the Court for an Order covering the decisions that need to be made on the Donor’s behalf.
Can the registered Power of Attorney be cancelled or revoked?
Yes, the Office of the Public Guardian can cancel the registration on factual grounds. For example (Bankruptcy of the Attorney) and the Court of Protection can terminate the Lasting Power of Attorney for other reasons. For example (the Attorney not carrying out duties correctly). Or if the Donor still has the capacity they can revoke the Lasting Power of Attorney. They must advise their Attorney(s) and the Office of the Public Guardian of the revocation so the Lasting Power of Attorney can be removed from the register.
What is the Power of Attorney register?
A searchable database containing the details of all registered Lasting Powers of Attorney. Once a Lasting Power of Attorney is registered certain personal information will be available to anyone who applies to search the register.
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