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Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
A Lasting Power of Attorney (“LPA”) is a formal document that, once registered with the Office of the Public Guardian (“OPG”), authorises individuals, known as “attorneys,” to make decisions on behalf of another person who is unable to do so for themselves. There are two types of LPAs:
- Property and Financial Affairs
- Health and Welfare
If an individual experiences life-changing injury or is diagnosed with a condition that affects their ability to manage their own health, welfare, or property, an LPA allows their appointed attorney(s)—which could be friends, family, or professionals—to manage their affairs on their behalf without the need for Court intervention.
While many people may think, “it will never happen to me,” the reality is that an increasing number of individuals will, at some point, lose the capacity to make decisions about their own lives. However, to create an LPA, the individual must have capacity at the time of signing. Therefore, an LPA cannot be made once a person loses the ability to make decisions. This is why it is strongly recommended to make an LPA at the same time as drafting a Will.
As part of the LPA creation process, an independent person, known as a “certificate provider,” must confirm that the person creating the LPA (“the donor”) fully understands the scope and purpose of the document, and that they are not under any undue pressure. The certificate provider can either be a professional, such as a solicitor, or someone who has known the donor for at least two years. The certificate provider will ask questions like: “What is an LPA?” “Why have you chosen your attorney(s)?” “What powers will your attorney(s) have?” and “How do you cancel an LPA?”
If there is doubt regarding an individual’s capacity to make an LPA, the same two-stage capacity test (mentioned in Blog 1) applies. However, the donor must also fully understand the implications of granting an LPA, including the fact that their attorney(s) will have complete authority over their affairs and will be able to do anything with their property that they themselves could have done.
What happens if an individual lacks capacity to make an LPA?
If an individual has not yet made an LPA and later loses the capacity to do so, an application must be made to the Court of Protection to appoint a Deputy who can manage their property, finances, and/or health and welfare on their behalf. The Deputy can either be a layperson, such as a family member or friend, or a professional, such as a solicitor.
If an LPA has already been created but evidence arises suggesting that the individual did not have the necessary capacity when the LPA was made, an application can be submitted to the Court of Protection to cancel the registration of the LPA. Following this, an application to appoint a Deputy to manage the individual’s affairs will be required.
How we can help
We have extensive experience in making applications to the Court of Protection for Property and Affairs Deputies. Additionally, our Court of Protection Partners, Simon Hardy and Jemma Garside, also act as professional Deputies. If you need assistance with making or challenging an LPA, or require help with appointing a Deputy, please do not hesitate to contact us. We are here to guide you through this process and ensure that the right decisions are made on behalf of those who are unable to manage their own affairs.
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Questions?
or call +44 (0)20 7814 1200
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