Points to consider when making an LPA

In this note we set out the particular matters you will need to think about and give us instructions on when preparing your LPA.  In addition the Office of the Public Guardian has prepared a guide for people wanting to make a lasting Power of Attorney and we suggest that you read it to give you a full understanding of the issues involved.

Our role as your solicitors

When we are asked to prepare an LPA the person making the LPA is our client.  We cannot prepare one without seeing our client and satisfying ourselves that s/he is able to give us instructions.  We can, initially, take instructions from a third party eg, our client’s spouse or son or daughter, but we generally still need to meet with our client on his/her own to check that they agree with the instructions we have been given.

Capacity to make an LPA

The person making an LPA (the “donor”) must have the mental capacity to make it, i.e. the donor must understand the purpose of the LPA and the scope of the authority being given to the attorney(s) under it.  We fully appreciate, and take account of the fact, that some people only want to make an LPA when they are already losing capacity.  There is no specific definition or test of what level of capacity is required to make an LPA.  It is not necessary that a person must still be capable of managing his or her property and affairs.  A person is assumed by law, to have capacity unless it is established that s/he lacks capacity.  The following factors will give us a guide:

  • Does the donor know that s/he has property and affairs that either now in the future needs to be dealt with;
  • Does the donor understand that it is desirable to arrange for some trusted person to have authority to handle those affairs; and
  • Is the donor capable of choosing such a person to act as his/her attorney

In cases of doubt it may be necessary to obtain a medical opinion but, in all cases, a certificate of capacity must be provided either from a person who has known the donor for at least 2 years or from a solicitor or other suitable professional.

What we need to know

This is a guide to the most important matters we need you, our client, to make decisions about. 

1. What type of LPA do you need?

There are two separate types of LPA:

  • Property and Affairs LPA
  • Personal Welfare LPA

2. Who will you be appointing as your attorney(s)?

  • It is important that the attorney(s)are absolutely trustworthy since you will be entrusting them with authority to manage your affairs.
  • Will you have more than one attorney, and if so should they always act together, or can they act independently?  If they can only act together it can provide a safeguard against possible abuse since each attorney will be able to oversee the actions of the other.  However, the LPA will come to an end if one of them dies or can no longer act for some other reason (unless you appoint a replacement).  If they can act independently the death or incapacity of one attorney would not bring the LPA to an end since the remaining attorney can continue to act on their own.
  • You can appoint attorneys to do different things and require them to work together for some things (eg selling your property) but separately for others (eg paying bills, looking after your bank account etc).
  • You can appoint a replacement attorney to act if one or more of your first attorney(s) dies or can no longer act.

3. What can your attorney(s) do?

  • You can give your attorney(s) a general power to manage all your property and affairs or limit their authority to specific matters.  Remember that if your attorney(s) are not able to make all decisions for you, you need to consider whether you should make other arrangements for the things they cannot deal with.
  • You are able to place conditions and/or restrictions on your attorney(s) which they must comply with, or you can give them guidance that they must take account of, but do not necessarily have to follow.  This is because, when considering ‘guidance’, the attorney(s) are required to act in the donor’s best interests and, particularly if circumstances have changed, they can decide that following the guidance is not in the donor’s best interests.  If the LPA contains ‘conditions’ the attorney has no discretion and s/he must comply with those conditions (even if circumstances have changed since the LPA was made).
  • An attorney has limited power to make gifts.  You can, however, limit this further.
  • Your attorney cannot have access to your will unless you agree that they can when making the LPA.
  • Your attorney has limited power to carry out any duties you may have as a trustee.  If you are a trustee you should let us know so that we can advise you appropriately.
  • An LPA comes to an end with the death of a donor.  After your death your property and affairs will be administered by your executor(s) if you have a will.  If you do not have a will you should consider making one - your attorney cannot make a will for you.

4. Who do you want informed when your attorney(s) apply to register your LPA?

As a safeguard to protect your interests, you are able to nominate up to five people to be given written notice when your attorney(s) apply to register the LPA with the Court of Protection.  Your attorney(s) cannot use the LPA until it is registered.  This is an important safeguard because if you lack capacity at the time of registration, you will be relying on these people to raise any concerns.

5. The Cost

The cost of making an LPA is made up of two parts:

(a) The fee that has to be paid to the Court of Protection for registering the LPA (until it is registered it is of no effect) - currently this is £120 for each LPA that is registered.  Consequently if you make both a Property and Affairs and a Personal Welfare LPA the Court fee is £240.  This only has to be paid when the LPA is registered so, if you make the LPA but do not intend to have it registered until you are unable to deal with your affairs this fee will not be payable at this time. 

(b) Our charges.  Our charges are £300 plus VAT for the preparation of a single LPA and £400 plus VAT for the preparation of both a Property and Affairs LPA and a Personal Welfare LPA.  If we are instructed to prepare LPAs for two people of the same household at the same time our charge for the second LPA is half the normal charge.  We are able, if our clients wish, to attend appointments in the client’s own home to advise and prepare LPAs.  We do, however, make an additional charge of £50 plus VAT for each visit. Where a certificate of capacity is required from a solicitor (see ‘Capacity to make a LPA’ above) there will be an additional charge of £50 plus VAT.