LPA Jargon Buster

20 August 2020

By Sarah Gill, Paralegal, Wills, Trusts & Estates

Lasting Powers of Attorney come with lots of legal jargon and can be quite daunting, however once you have a handle on the terminology and a great legal team guiding you, they can be quite easy to understand and are vital legal documents which we should all have in place.

With this in mind we present to you our LPA Jargon Buster.

Lasting Powers of Attorney (LPA) 
LPA is an abbreviation for Lasting Power of Attorney. LPAs are documents that give a person or persons who are appointed by you the authority to make decisions on your behalf when you are unable to do so. There are two types of LPA:

LPA – Property & Affairs 
An LPA for Property & Affairs allows you to appoint attorneys to look after your property and day-to-day finances, should you be unable to do so in the future. For example, you may have suffered a stroke or fallen. Alternatively, you may lack mental capacity. This LPA can be used both when you have capacity to act as well as if you lack capacity to make your own decisions.

LPA – Health & Welfare
An LPA for Health & Welfare allows you to appoint attorneys to speak on your behalf regarding your wishes if you no longer have capacity to do so yourself. (This document will only ever be activated, should you no longer have capacity). Your attorneys would be able to make decisions about, for example, where you live, what you eat, who visits you and life-sustaining treatment.

Life Sustaining Treatment
Life sustaining treatment may mean surgery or medication from doctors that is needed to keep you alive. For example, a serious operation, cancer treatment or a simple course of antibiotics may be life-sustaining.

Your attorneys are the person or persons appointed by you who will make decisions on your behalf should the LPA be enacted. An LPA is an important document and gives your attorneys considerable authority. Your attorneys must therefore be trustworthy and have the appropriate skills to make the proposed decisions.

Jointly or Jointly & Severally
When you appoint attorneys as part of an LPA  they are appointed either Jointly or Jointly and Severally.

This is an important decision if you have more than one attorney. If you appoint your attorneys jointly, they must agree unanimously on every decision. If they cannot agree on a decision then the Court will have to make that decision. Also, if one of your attorneys cannot act for you, the LPA will stop working.

If you appoint your attorneys jointly and severally, your attorneys can make decisions together or individually. It also means that if one of your attorneys cannot act for you, then your LPA will still be effective with your remaining attorney(s).

Certificate Provider
A separate individual will sign the LPA to confirm that you understand the nature and scope of the LPA and have not been unduly pressured into making the power(s). This person is called a Certificate Provider. The LPA(s) must then be registered at the Office of the Public Guardian.

Office of the Public Guardian (OPG)
The OPG is a government body in England and Wales that oversees the use of LPAs and can hold any attorneys to account, if they believe that they are not acting in your best interests. It has a statutory responsibility to supervise those acting as attorneys or deputies. LPAs must be registered with the OPG before they can be used by your attorneys.

If you have not made an LPA and you lack mental capacity, then it will be necessary to make an application to the Court of Protection for a Deputyship Order. This can be a long, stressful and particularly costly process for family members/loved ones and there is no guarantee over who the Court will appoint as your Deputy.

Enduring Powers of Attorney (EPA)
EPAs preceeded the creation of LPAs and were only available for property and finances and not health and welfare. If you have made a valid EPA before the 1 October 2007, these remain valid and can be used by your attorneys. However, depending on how they have been drawn up, they can be limited in their ability.

If you would like a free initial consultation to discuss LPAs with one of our team contact us on 01244 356 789 or email info@cullimoredutton.co.uk

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.