Can You Create an LPA Without a Solicitor?

Creating a Lasting Power of Attorney (LPA) is an essential step for ensuring that your personal and financial decisions are managed according to your wishes if you become unable to make them yourself. While many people seek the help of a solicitor to navigate this process, it is possible to create an LPA independently. This guide explores the feasibility of setting up an LPA without professional assistance, offering insights into the process, forms, and registration requirements.

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a powerful legal document that allows you to appoint one or more trusted individuals to make decisions on your behalf if you lose mental capacity or are otherwise unable to make decisions for yourself. This document ensures that your wishes regarding your property and financial affairs, as well as your health and welfare, are respected and followed.

By setting up an LPA, you can have peace of mind knowing that your financial affairs and personal well-being will be managed according to your preferences, even if you are no longer able to communicate them.

Why is an LPA Important?

An LPA is vital for preparing for the future by designating trusted representatives, known as attorneys, to make decisions on your behalf if you are unable to do so. This is particularly beneficial for those who may lose mental capacity due to ageing, illness, or injury. By establishing an LPA, you ensure that decisions regarding your finances, healthcare, and personal welfare will be managed according to your wishes, even if you can no longer communicate them yourself.

An LPA for health and care decisions enables an appointed attorney to make crucial choices about your health and personal care should you lose mental capacity. This ensures your preferences are honoured and decisions are made in line with your wishes.

Additionally, having an LPA helps to avoid potential disputes among family members by clearly outlining the responsibilities of your attorneys. This clarity promotes transparency and helps safeguard your interests.

While you can create an LPA without consulting a solicitor, it requires a thorough understanding of legal requirements. Although there are resources and guidance available for those who wish to complete the process independently, seeking professional advice can offer added assurance that the document complies with legal standards and accurately reflects your intentions.

Types of Lasting Powers of Attorney

There are two main types of LPAs: property and financial affairs lasting power (LPA), and health and welfare LPA. Understanding these types, including the financial affairs LPA health, is crucial in deciding which LPA to create.

Property and Financial Affairs LPA

The Property and Financial Affairs LPA, also known as the financial affairs lasting power, enables your appointed attorney to make decisions regarding your financial matters. This includes managing bank accounts, selling property, and handling tax affairs. Once registered, this LPA can be used immediately, even if you are still capable of making decisions yourself. However, you can specify that it should only be activated if you lose mental capacity.

This type of LPA is essential for ensuring your financial affairs are managed according to your wishes in the event you are unable to do so. It also alleviates potential difficulties for family members who might otherwise struggle with accessing accounts or managing assets without the appropriate legal authority.

Health and Welfare LPA

The Health and Welfare LPA grants the attorney authority to make decisions about the donor’s personal care, medical treatments, and living arrangements. Unlike the Property and Financial Affairs LPA, the welfare lasting power can only be used when the donor has lost mental capacity. This means the attorney is authorised to make decisions about personal welfare, such as consenting to medical treatments, deciding on living arrangements, and determining the type of care to be provided.

The attorney may need to make choices about life-sustaining medical treatment or the implications of advance decisions about medical treatment.

This type of LPA is particularly useful for ensuring that healthcare decisions are made in line with the donor’s wishes, even if they are unable to communicate those preferences. By creating a Health and Welfare LPA, individuals can retain control over their medical care and personal wellbeing, even in the face of incapacitating illness or injury.

Combined LPAs

Some individuals may choose to create both types of LPAs—Property and Financial Affairs LPA and Health and Welfare LPA—to cover all aspects of their life. In this case, you could select the same attorney for both roles or designate different individuals based on their strengths and expertise. For example, you might appoint someone with a strong financial background to manage your finances while designating a close family member to make healthcare decisions.

Choosing the right LPA and the appropriate attorney(s) is a critical step. Assessing your needs and the qualifications of potential attorneys will help ensure that your wishes are properly carried out in the future.

Who Can Make a Lasting Power of Attorney?

Anyone who is 18 or over and has mental capacity can make a Lasting Power of Attorney. This means you must be able to understand and appreciate the nature and effect of the document, and be capable of making your own decisions. Importantly, you do not need to live in the UK or be a British citizen to create an LPA. As long as you meet the mental capacity requirements, you can take advantage of this legal tool to ensure your affairs are managed by someone you trust.

Who Can Be an Attorney?

An attorney is the person or people you appoint to make decisions on your behalf through your LPA. You can choose anyone you trust, such as a family member, friend, or professional. The key requirement is that the attorney must be 18 or over and have mental capacity.

You have the flexibility to appoint one or more attorneys, and you can also designate replacement attorneys in case the original attorney is unable to act. This ensures that there is always someone available to manage your affairs according to your wishes.

Responsibilities of an Attorney

As an attorney, you have several important responsibilities to uphold. These include:

• Acting in the best interests of the donor (the person who made the LPA).

• Making decisions that align with the donor’s best interests and known wishes.

• Keeping the donor’s money and property separate from your own.

• Maintaining accurate accounts and records of all transactions and decisions made on behalf of the donor.

• Avoiding any actions that contradict the donor’s values or previously expressed preferences.

By fulfilling these responsibilities, attorneys help ensure that the donor’s affairs are managed with integrity and respect./

Completing the LPA Form

If you decide to create an LPA without a solicitor, you will need to complete the necessary forms accurately to avoid errors that could invalidate the document. The forms for both types of LPAs are available from the Office of the Public Guardian (OPG) and can be completed either online or on paper.

Local Citizens Advice can provide guidance on the specific wording required for the process and help navigate legal matters related to power of attorney.

Signing and Witnessing

Once the form is completed, it must be signed by the donor, the attorney(s), and a certificate provider. The certificate provider is an impartial person who confirms that the donor understands the document and is not being coerced into creating the LPA. The certificate provider can be someone who has known the donor for at least two years or a professional, such as a doctor or solicitor.

The signing process must be done correctly, as any errors could invalidate the LPA. For example, the signatures must be witnessed, and the form must be signed in the correct order (the donor first, followed by the attorney(s)).

Costs and Fees

There is a fee to register the LPA with the Office of the Public Guardian (currently £82 per LPA in England and Wales). If you are creating both a Property and Financial Affairs LPA and a Health and Welfare LPA, you will need to pay for each one separately. However, fee reductions or exemptions may be available for individuals with low incomes or those receiving certain benefits.

Completing the LPA form without a solicitor is feasible but requires careful attention to detail. By following the instructions provided by the OPG and ensuring that all required information is accurately provided, you can create a legally valid LPA independently.

Registering the LPA

Once the LPA form is completed and signed, it must be registered with the Office of the Public Guardian (OPG) before it can be used. The registration process is crucial for making the LPA legally valid.

How to Register the LPA

To register your LPA, submit the completed and signed form to the OPG, along with the applicable registration fee. You can either send the form by post or register it online through the OPG’s website. The registration process typically takes around eight to ten weeks, but it can take longer if there are any errors or issues with the form.

During this time, the OPG will review the LPA to ensure it complies with legal requirements. If everything is in order, the OPG will register the LPA and provide a stamped copy as confirmation. It’s important to keep this document safe, as it will be needed when the attorney(s) begin acting on your behalf.

Notification and Objections

If you have listed any people to be notified when the LPA is registered, they will have the opportunity to raise any concerns or objections. This step is designed to protect the donor from potential abuse or coercion. If someone believes the LPA is not in the donor’s best interests, they can submit an objection to the OPG for further investigation.

Storing the LPA

Once the LPA is registered, you should store it in a safe place and inform your attorney(s) where it can be found. It’s also a good idea to provide copies to relevant parties, such as your bank, GP, or care provider. This will ensure that your attorney(s) can access the LPA when needed and act on your behalf without delay.

What Happens if You Lose Mental Capacity Without a Power of Attorney?

If you lose mental capacity without a Power of Attorney in place, your loved ones may face significant challenges in managing your affairs. They might need to apply to the Court of Protection for a deputyship order, which can be a lengthy and expensive process. This can lead to delays and complications in handling your finances, property, and health and welfare decisions.

By having a Lasting Power of Attorney in place, you can avoid these issues and ensure that your affairs are managed smoothly and according to your wishes by someone you trust.

Frequently Asked Questions

Can I make changes to my LPA once it’s registered?

Yes, you can make changes to your LPA after it has been registered. However, you will need to create a new LPA and go through the registration process again. It’s important to ensure that all changes are properly documented and registered to avoid any confusion or legal issues.

What happens if I don’t create an LPA?

If you don’t create an LPA and become unable to make decisions, your family may have to apply to the Court of Protection to make decisions on your behalf. This process can be lengthy, costly, and may not reflect your personal preferences.

An ordinary power of attorney provides temporary financial authority to an appointed attorney and is valid only while the individual retains mental capacity.

Can I appoint more than one attorney?

Yes, you can appoint more than one attorney. You can choose for them to act jointly (together) or jointly and severally (individually or together). Jointly means all attorneys must agree on decisions, while jointly and severally allows them to make decisions independently.

Do attorneys get paid for their role?

Attorneys can be reimbursed for reasonable expenses incurred while performing their duties. However, they are generally not paid for their time unless specifically agreed upon in the LPA or if they are a professional attorney (such as a solicitor).

Can I cancel my LPA?

You can cancel your LPA at any time as long as you are still mentally capable. To cancel it, you must complete a formal document known as a "Deed of Revocation" and notify the Office of the Public Guardian.

Conclusion

Creating a Lasting Power of Attorney is an essential step in planning for the future and ensuring that your wishes are respected if you become unable to make decisions yourself. While it is possible to complete an LPA without a solicitor, it requires careful attention to detail and a clear understanding of the legal requirements.

By following the steps outlined in this guide, you can create a legally valid LPA that reflects your preferences and provides peace of mind for you and your loved ones. Whether you choose to handle the process independently or seek professional assistance, the key is to ensure that your decisions are documented accurately and in accordance with the law.

If you have any doubts or concerns, consulting a solicitor can provide additional assurance and help navigate any complexities. Ultimately, taking the time to set up an LPA will help protect your interests and ensure that your affairs are managed according to your wishes.