The LPA (PA) allows you to authorise another person ie your solicitor to make decisions on your behalf in relation to your property and financial affairs and to manage your financial affairs. You are known as the Donor. Your solicitor can do anything in relation to your property and financial affairs that you could do yourself, e.g. buy and sell property; manage your investments; open and close bank accounts; claim benefits and pensions and carry on your business.
Your solicitor can only use the LPA once it has been registered with the Office of the Public Guardian (OPG). Once your LPA has been registered, your solicitor can act both before you lose mental capacity to manage your own affairs and after you have lost capacity for any reason.
You may choose more than one solicitor. If you choose more than one, you must decide if your Attorneys must always act together or whether they can also act independently of one another. You may appoint your solicitor to act independently in basic financial transactions but require that they act together when, for example, selling your home.
Your solicitor will have limited ability to make gifts with your money. Any gifts made must be consistent with gifts that you usually make to family and friends on occasions such as birthdays and Christmas.
Please note that your solicitor does not have the power to make a Will for you.
Restrictions and Conditions
You can apply specific conditions and restrictions to the use of the LPA by your solicitor. For example, you may specify that the LPA is only to be used when you lack capacity or you may exclude your solicitor’s ability to make gifts on your behalf. If you include a restriction that your solicitor can only act when you lack capacity, financial institutions may require medical evidence of lack of capacity before accepting your solicitor’s authority to act.
You can also guide your solicitor as to how you would want them to use the LPA. Such guidance can be in the LPA itself or in a letter of guidance however, the latter will not be binding on your solicitor.
Safeguards
The LPA contains three important provisions to protect your position. An independent person (known as the Certificate Provider) must read through the LPA with you in the absence of the solicitor. The Certificate Provider must then certify that you are making the LPA of your own free will and that you understand its purpose and the powers you are giving the solicitor.
You can name up to five people who must be notified when an application to register the LPA is made. This gives the people you have named the right to object to the registration of the LPA.
The LPA must be registered with the OPG before it can be used.
Registration
Either you or your solicitor can apply to register the LPA. Notice must be given to the people you have indicated in the LPA. The current fee payable to OPG on registration is £120. The LPA can be used immediately following registration (unless you have applied a restriction that it can only be used when you lack mental capacity). This may be useful in the event of physical infirmity or if you are intending to be out of the country for a period of time.
The OPG will maintain a record of all registered LPAs.