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Lasting Power of Attorney
Plan in case you lose the ability to manage your own affairs.
What is a Lasting Power of Attorney?
Why should you make a Lasting Power of Attorney?
How do you make a Lasting Power of Attorney?
How much does it cost?
Questions? Call us on 08700 120 130 or email [email protected]
2
Introduction
If you have a serious accident or stroke, or you develop dementia, you may not
be able to manage your finances or make decisions about your care. A Lasting
Power of Attorney (LPA) gives someone you trust the ability to act on your
behalf, should you be unable to act yourself.
There are two types of Lasting Power of Attorney – one for financial decisions
(including property) and the other for health and care decisions. Both types
must be registered before they are valid. This guide explains why everyone aged
18 or older should have both types of Lasting Power of Attorney, and how you
can go about making them.
If you have any questions or would like to book a free appointment for advice
without obligation, just us on 08700 120 130 or email [email protected]. Our
headquarters are in Nottingham and we have offices across the East and West
Midlands.
© April King 2017
Questions? Call us on 08700 120 130 or email [email protected]
3
Contents Introduction 2
“Why do I need a Lasting Power of Attorney?” 4
“What does it mean to have ‘mental capacity’?” 5
“What happens if I don’t have a Lasting Power of Attorney?” 7
“Can my executors make decisions for me if I lose mental capacity?” 8
“But I’m not ill!” 9
“I’ve been diagnosed with dementia – can I still make an LPA?” 9
“What exactly is a Lasting Power of Attorney?” 10
“Who should I choose to be my attorney?” 12
“How do I make a Lasting Power of Attorney?” 14
“Do I have to use a lawyer?” 15
“How much does it cost to make a Lasting Power of Attorney?” 17
“I have an Enduring Power of Attorney (EPA) – do I need an LPA?” 19
“What’s an Ordinary Power of Attorney?” 20
“My bank says I should just set up a third party mandate…” 20
“How is an Advanced Decision related to a Lasting Power of Attorney?” 21
LPA: Who’s who? 22
Make an appointment 23
Questions? Call us on 08700 120 130 or email [email protected]
4
“Why do I need a Lasting Power of Attorney?”
Dementia, stroke or brain injury due to an accident can affect people
of any age.
We associate losing mental capacity with old age but in fact, this can affect anybody at
any point during their life. For example, did you know:
One in four strokes in the UK happen in people under the age of 65 (Stroke
Association)
An estimated 42,000 people under the age of 65 in the UK have dementia – more
than 5 per cent of all those with dementia (Alzheimer’s Society)
Accidents can affect anybody at any time, rendering them unable to manage their
own affairs.
There are many health conditions that can result in loss of mental capacity. Often, by the
time you receive a diagnosis, it is then too late to make a Lasting Power of Attorney. It
therefore makes perfect sense to organise this document while you are still in good
health mentally.
Many people assume that if they lose mental capacity, their partner or ‘next of kin’ will
automatically be able to take over handling their finances and make decisions for
them, but this is not the case. Sometimes the bank will even freeze joint accounts and
refuse to allow access to funds when one party becomes incapacitated – even if the
funds are needed to pay for their care.
Everyone aged 18 or over should have both types of Lasting Power of Attorney in place.
Rather than leave the choice of who will be making decisions for you to chance, you can
make a Lasting Power of Attorney now and decide for yourself who you’d like to be in
charge of your affairs.
Someone in the world develops dementia every 3 seconds.
~ World Alzheimer Report 2015
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5
“What does it mean to have ‘mental capacity’?”
‘Mental capacity’ is about being able to make your own decisions. You
won’t be able to make an LPA if you lose mental capacity.
You’ll hear the term ‘mental capacity’ a lot when you’re reading about Lasting Powers of
Attorney. Most of us make decisions daily about every aspect of our lives.
Being able to make these decisions is called mental capacity.
Illness, injury or various conditions prevent us from making decisions, or mean that we
cannot make all of the decisions ourselves. For example, learning disabilities, brain
injuries, dementia or a stroke can all impact our ability to make decisions.
However, some people get confused with the term ‘mental capacity’, thinking that it
refers to mental illness. Having a mental health condition does not necessarily mean that
a person lacks capacity. Just because they are suffering from depression, schizophrenia
or bipolar, for example, does not prevent them from making decisions for themselves.
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The law actually defines under what circumstances someone lacks mental capacity. The
Mental Capacity Act 2005 says:
…a person lacks capacity in relation to a matter if at the material time
he is unable to make a decision for himself in relation to the matter
because of an impairment of, or a disturbance in the functioning of,
the mind or brain.
The Act further explains that a person is unable to make decisions for themselves if they
cannot:
understand the information relevant to the decision,
retain that information,
use or weigh that information as part of the process of making the decision, or
communicate their decision (whether by talking, using sign language or any other
means).
When you make a Lasting Power of Attorney, you must have mental capacity. A
‘Certificate Provider’ will sign to certify that you are capable of making the choice. Often,
this will be the lawyer that you are preparing the document with – but it can also be
someone you’ve known for two years or someone with relevant professional skills such
as a social worker or doctor.
If you don’t make a Lasting Power of Attorney and a Deputyship Order is required, there
are a lot of forms which must be submitted in a very specific order. These include an
Assessment of Capacity form (COP3) to be completed by a suitable medical practitioner
who will certify that you have lost mental capacity. The practitioner can be your GP,
psychiatrist or approved mental health professional, social worker, psychologist, nurse,
or occupational therapist. The whole process is lengthy, complex, expensive and easily
avoided by making a Lasting Power of Attorney now.
Questions? Call us on 08700 120 130 or email [email protected]
7
“What happens if I don’t have a Lasting Power of Attorney?”
Applying for a Deputyship Order is a long, complex and expensive
process.
If you do lose mental capacity and you don’t have a Lasting Power of Attorney, someone
will have to apply to the Court of Protection for a “Deputyship Order”. The person who
applies may not be the person you would have chosen yourself. The application
process is lengthy and expensive. Once an order is granted, that person (who is called a
‘Deputy’) can make decisions for you, which might include:
Paying bills and expenses on your behalf.
Deciding how your day is organised.
Deciding how and where you receive care.
Deciding if your home will be sold.
The Deputy must always act in your best interests, but abuse does happen – including
theft, fraud, misuse of property, possessions or benefits, undue pressure and neglect
(OPG, 2015). This is one reason why making a Lasting Power of Attorney and
nominating someone you trust to manage your affairs is a sensible choice.
Applying for a Deputyship Order is a long, complex and often intrusive process. It is also
expensive. There are application fees, assessment fees, legal fees and potentially
hearing fees – plus an on-going annual supervision fee.
The best advice is, don’t let it get to this stage. Making a Lasting Power of Attorney is a
much simpler, cheaper and quicker way to elect somebody you trust to manage your
affairs should you be unable to do so yourself.
Questions? Call us on 08700 120 130 or email [email protected]
8
Deputyship order fees
The following are the fees payable if someone doesn’t make a Lasting Power of
Attorney and consequently their relatives/friends have to apply to the Court for a
Deputyship Order for both Financial Decisions and Health and Care Decisions:
Deputyship Order application fees (£400 for
each type of Order) £800
Deputyship Order hearing fees – if the Court
decides that a hearing is necessary £500
New deputy fee (£100 per deputy – based on a
typical application for 2 deputies) £200
Annual general supervision fee – always
payable the first year (may be reduced to £35
for subsequent years for Financial Decisions
Deputyship Orders if assets are under £21,000)
£320
Legal fees for dealing with both types of order
(these vary greatly from one firm to another) £1,080 - £2,160 including VAT
Total £2,900 - £3,980 including VAT where applicable
As you can see, making a Lasting Power of Attorney now can save a lot of money down
the line. Our fees for making a Lasting Power of Attorney are set out on page 18.
“Can my executors make decisions for me if I lose mental
capacity?”
People often assume that because they have made a Will, their executors will be able to
make decisions for them if they lose mental capacity. Unfortunately this is not the case.
A Will is concerned only with what happens after you die. A Lasting Power of Attorney is
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concerned only with what happens while you are alive. The two documents are not
connected at all.
You can of course appoint the same people you have chosen to be your executors as
your attorneys but you do need to make a Lasting Power of Attorney to do this.
Questions? Call us on 08700 120 130 or email [email protected]
10
“But I’m not ill!”
Younger people often assume that Lasting Powers of Attorney are for the ill or elderly,
but this is a common mistake. It’s crucial to understand that you can’t set up a Lasting
Power of Attorney once you lose mental capacity. So, for example, if you were in an
accident tomorrow and lost mental capacity, nobody would be able to manage your
affairs without a Deputyship Order – not even your partner or grown-up children.
Once completed, Lasting Powers of Attorney can take a substantial amount of time to
register – 10 to 12 weeks is typical. Until they are registered, they cannot be used. If
there are any mistakes or queries regarding your application and you lose mental
capacity before these have been resolved, in many cases the document will then be of
no use. So it’s wise to start the process as soon as possible.
People think, ‘I’m not ill, why do I need to make a Power of Attorney?’.
But they’re missing the point. This is a document that has to be done
in advance.
~ Paul King, TEP, April King Nottingham Office
“I’ve been diagnosed with dementia – can I still make an LPA?”
You can make an LPA provided that you have mental capacity. A diagnosis of dementia
does not automatically mean you have lost mental capacity.
To make an LPA, you don’t need to be able to understand every decision that is presented
to you. You might be, for example, struggling to manage your finances or to remember to
pay bills. That’s fine – as long as you understand what you are signing when it comes to
making the LPA, and the implications.
Unfortunately, with dementia, you won’t know how quickly or slowly you will lose mental
capacity. It’s therefore vital to make the LPA as soon as possible after having the diagnosis.
You should also ensure your Will is completely up to date at the same time.
You may find our article ‘I’ve been diagnosed with dementia”: legal and financial
considerations’ helpful.
Questions? Call us on 08700 120 130 or email [email protected]
11
“What exactly is a Lasting Power of Attorney?”
You can choose to use your Financial Decisions Lasting Power of
Attorney any time you need help managing your finances, even
though you haven’t lost mental capacity.
There are two types of Lasting Power of Attorney and it is advisable to have both.
The Financial Decisions Lasting Power of Attorney can be used for decisions such as:
Paying household, care and other bills.
Claiming, receiving and using benefits, pensions and allowances.
Making or selling investments.
Buying or selling your home.
This type of Lasting Power of Attorney is a very convenient document that can be used,
once registered, if:
You lose mental capacity because of illness or injury.
You are away from home and want someone to handle a problem for you.
You are in hospital and want someone else to manage your affairs.
In fact, this document can be used any time after it has been registered, with your
permission (even though you have not lost mental capacity).
The Health and Care Lasting Power of Attorney can be used for decisions such as:
The type of medical care you receive.
Whether you stay in your home or move into residential care.
What you eat from day to day.
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Your daily routine – dressing, going out etc.
This document can only be used (once registered) if you have lost mental capacity and
are unlikely to make a recovery within a reasonable time.
Ask yourself who you would trust to make these type of decisions if
you could not make them yourself.
For many of us, the choice of attorney will be obvious – a partner or a grown-up child
who we trust. But without a Lasting Power of Attorney, this person will have no power to
make those decisions for us from day-to-day. Of course, they could apply for a
Deputyship Order, but they may be unable to take on this responsibility and someone
else may be given the power instead. All of this can be avoided by making a Lasting
Power of Attorney.
Two thirds of the 21,935 reports of financial abuse against the elderly
made last year involved accusations against family and friends.
~ Health and Social Care Information Centre
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13
“Who should I choose to be my attorney?”
You could choose your spouse, grown up children, brothers or sisters
to be your attorneys.
Almost anyone aged 18 or over can be your attorney including your partner, your grown-
up children, other family members, close friends or a lawyer. There are a few restrictions
on who you can choose, which your lawyer will discuss with you.
The application forms have space for four attorneys but you can have as many as you
choose. However, consider that the more people you have, the more difficult it will be for
them to reach an agreement!
You can decide whether your attorneys will be have to make decisions together, or
whether they can make decisions individually. Assuming you are choosing people you
trust, allowing them to making decisions individually should not be a problem. If they
have to make every decision collectively, this can cause considerable difficulties –
especially if you have an even number of attorneys who simply cannot agree!
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It’s also wise to name replacement attorneys in case your choice of attorneys are unable
to act. If you appoint two or more attorneys and specify that they must make decisions
jointly, then fail to nominate a replacement attorney, the Lasting Power of Attorney will
no longer be valid if one of them becomes unable or unwilling to act.
This is a good example of why it is important to use an experienced lawyer to prepare
your Lasting Power of Attorney. There are many potential pitfalls that are not obvious
from simply reading the form and although they do not always prevent the document
from being registered, they can render the document invalid in the future.
Questions? Call us on 08700 120 130 or email [email protected]
15
“How do I make a Lasting Power of Attorney?”
Lasting Power of Attorney forms.
A Financial Decisions Lasting Power of Attorney is made on form LP1F while a Health
and Care Lasting Power of Attorney is made on form LP1H.
The process involves three steps:
Find a suitable lawyer.
Go over the documents with your lawyer.
Your lawyer will then register the document with the Office of the Public
Guardian.
The completed Lasting Power(s) of Attorney will usually be returned directly to your
lawyer who will make a copy and send it on to you for storage. Some lawyers (including
April King) will store the document for you free of charge.
Questions? Call us on 08700 120 130 or email [email protected]
16
“Do I have to use a lawyer?”
A lawyer can ensure that your Lasting Power of Attorney works the
way that you want it to.
There are two ways you can make your LPA:
By yourself.
With the help of a lawyer.
NB: If there are complex assets, businesses, property overseas or any disagreements
within the family, you should always use a lawyer.
Making an LPA by yourself
At first glance, the LPA forms can appear quite simple. However, a few sections contain
potential pitfalls. The main sections where things tend to go wrong include those on how
your attorneys should act for you, replacement attorneys, instructions and preferences. If
you fill the form in incorrectly, one of three things may happen:
1. Your application may be entirely rejected by the Office of Public Guardian so that
you have to resubmit the documents and further payment;
2. The Office of Public Guardian may contact you for more details, delaying the
process of registration; or
3. Your application may be accepted but because of how you have set up your LPA,
it may become useless in certain circumstances, after you have lost mental
capacity. In some circumstances it may be possible to refer the document to the
Court of Protection in order to sever the invalid provisions but this takes time and
money, and causes inconvenience.
The final scenario can be the most serious – if your LPA is invalid, your relatives or close
friends will have to go to the Court to obtain a Deputyship Order to be able to help you.
Aside from being expensive, this is a lengthy process and nobody can act until the Order
has been made.
However, in scenarios 1 and 2 – where there is a mistake on your form that results in it
being rejected or information needs clarifying - if you lose mental capacity before the
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issues have been resolved, the document will again be useless. A Deputyship Order will
then be the only option for your relatives/friends. Making a Lasting Power of Attorney
yourself without the help of a lawyer is rather like drawing up your own Will without
taking legal advice. It is a very unwise decision that can have catastrophic
consequences.
How many applications are returned or rejected?
From 2012 to June 2015 the Office of the Public Guardian received 1,053,719
applications to register a Lasting Power of Attorney. Of those 133,210 contained
mistakes that prevented them from being registered. In these cases, the Office of Public
Guardian had to contact the applicant to resolve the issues.
In addition to those applications that contained mistakes, another section of applicants –
over 15,000 - were completely rejected. These applicants would have had to resubmit
new forms with additional fees. If any of those applicants lost mental capacity after the
rejection but before a new LPA could be made, the only way forward would be a
Deputyship Order. Using an experienced lawyer who specialises in this area of law helps
ensure that those mistakes are avoided.
…it’s important to remember that a Lasting Power of Attorney is a
serious, powerful document so, if in doubt, [you] may want to take
legal advice.
~ Lucy Malenczuk, Policy Adviser on Financial Services, Age UK
Making an LPA with a lawyer
An LPA is a powerful legal document and it makes sense to use an experienced lawyer
to set it up. Using a lawyer to help you prepare your Lasting Power of Attorney gives you
peace of mind. Your lawyer will make sure that you fully understand the choices you are
making and that everything is prepared correctly. The April King Legal team are highly
experienced in preparing and submitting Lasting Powers of Attorney. Our headquarters
are in Nottingham and we have a total of 18 offices throughout the Midlands. Our fees
are very competitive in comparison with other firms (see page 18). Call us on 08700 120
130 or email [email protected] to arrange a free appointment without obligation.
Questions? Call us on 08700 120 130 or email [email protected]
18
“How much does it cost to make a Lasting Power of Attorney?”
Our fees are highly competitive in comparison with other firms
The Office of the Public Guardian charges £82 to register each Lasting Power of
Attorney. This fee applies to both types of Lasting Power of Attorney, so if you have both
a Financial Decisions and a Health and Care Lasting Power of Attorney, the total
application fees will be £164.
If you receive certain means tested benefits, you may be exempt from paying the fee –
or if your income is less than £12,000 before tax, you may get a reduction. You will need
to provide proof of income and/or benefits to be entitled to the concession.
In addition to the application fees, you will need to pay for the cost of any legal advice
you receive. Fees can vary a great deal between lawyers, with some charging up to
£1,000.
Our fees are set out on the table on the next page. We have also quoted our fees for
making a Will as many of our clients choose to deal with these matters at the same time.
We specialise in Wills that protect your assets from Care Fees and keep them within the
family.
Find out more about Care Fee Trust Wills
Find out more about Bloodline Wills
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19
You’ll be pleased to find our fees are highly competitive: OUR VALUE PACKAGE:
1 x Lasting
Power of Attorney
(Health or Finance)
2 x Lasting
Power of Attorney (Health
and Finance)
Standard Will
Trust Will (to include Bloodline / Care Fee
Trust)
2 x Lasting Power of Attorney
(Health and Finance) + Trust Will
Initial appointment or home visit discussing your needs
All necessary follow up appointments e.g. for signing
All work completed by a lawyer
Forms registered with the Court for you by a lawyer
N/A N/A
Mental capacity certification
N/A N/A
Document storage
Includes care fee trust
N/A N/A
Includes bloodline trust
N/A N/A
OUR FEES (per person)
£240 + VAT*
£480 + VAT*
£120 + VAT
£240 + VAT
£600 + VAT*
* The above fees do not include Court of Protection fees which are either
£0, £41 or £82 for each type of LPA per person, depending on your
financial circumstances. No VAT is payable on Court fees.
You save: 17% (£120)
Questions? Call us on 08700 120 130 or email [email protected]
20
“I have an Enduring Power of Attorney (EPA) – do I need a Lasting Power of Attorney?”
Lasting Powers of Attorney are a replacement for the Enduring Power of Attorney. If you
made an Enduring Power of Attorney before these were replaced on 1st October 2007, it
will still be valid, even if it has not been registered. Should you lose capacity, the
Enduring Power of Attorney would then need to be registered by one of your nominated
attorneys to be valid, at a cost of £82 unless you are entitled to help with the fees. They
won’t have to pay the fee if you receive certain means-tested benefits; or if your income
is less than £12,000 before tax, the fee will be 50%.
An Enduring Power of Attorney only covers property and financial affairs, so you may
want to consider making a Health and Care Lasting Power of Attorney in addition. If you
only have an Enduring Power of Attorney and lose capacity, it may be necessary to
obtain a Deputyship Order to make decisions relating to your health and care.
Some people decide to replace their Enduring Power of Attorney with two new Lasting
Powers of Attorney. The main benefits of getting both types of Lasting Power of Attorney
if you already have an Enduring Power of Attorney are:
Enduring Powers of Attorney are registered once you lose capacity – Lasting
Powers of Attorney are registered once they are made. There can be a delay of 8
to 10 weeks in registering the Enduring Power of Attorney during which time it
cannot be used (if you have lost mental capacity), and this period can be
extended if a family member objects. In the meantime, nobody will be able to
manage your affairs.
Lasting Powers of Attorney allow you to better manage who makes decisions for
you if you are incapacitated – you do not have to choose the same people to
make finance decisions as you do to make health decisions.
Enduring Powers of Attorney can be used with your permission even if they are not
registered, provided that you still have capacity. Financial Decisions Lasting Powers of
Attorney can also be used with your permission (once registered) provided that you have
capacity. For example, you could choose to use either document if you are in hospital or
abroad for a period of time and want someone to handle your affairs temporarily.
However, few banks ensure that their staff are fully trained on Powers of Attorney and it
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21
is likely that they will be more familiar with the newer form of Lasting Power of Attorney,
which can help prevent unnecessary delays.
“What’s an Ordinary Power of Attorney?”
An Ordinary Power of Attorney is a document that gives permission for someone to
manage certain aspects of your financial affairs for you – such as selling your house,
dealing with your tax records, or managing your bank account. The document is made
for a specific reason and usually for short term use – for example, if you are travelling or
have to stay in hospital for a period of time. You must have mental capacity to make an
Ordinary Power of Attorney and if you lose mental capacity, the document will no
longer be valid. At this stage, you won’t be able to make a Lasting Power of Attorney
either – and your relatives/friends will have to apply to the Court for a Deputyship order
which, as noted, is an expensive and lengthy process.
Some institutions recommend making an Ordinary Power of Attorney if you are
experiencing early symptoms of dementia so that someone can help with your finances.
We recommend that instead you make a Lasting Power of Attorney for Financial
Decisions. Really, this document is always preferable – provided that you tick the box in
Section 5 of the application form which says that your attorneys may act for you “As
soon as my LPA has been registered (and also when I don’t have mental capacity)”.
Once registered, a Lasting Power of Attorney for Financial Decisions can be used with
your permission – and if you lose mental capacity, your chosen attorneys can continue
to act for you.
“My bank says I should just set up a third party mandate…”
If you have early symptoms that could be dementia, sometimes banks or organisations
will recommend you simply make a third party mandate. This is a formal instruction from
you to your bank which tells them that you'd like another party to carry out everyday
banking transactions on your behalf. They won’t be able to open and close the account.
The problem with this mandate is that it can only be used while you have mental
capacity. Once you lose mental capacity, it is no longer valid – and you won’t be able to
make a Lasting Power of Attorney at that stage either. It therefore makes more sense to
make a Lasting Power of Attorney for financial decisions while you have mental capacity
– this can be used both while you have mental capacity (with your permission) and after
you lose mental capacity.
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22
“How is an Advanced Decision related to a Lasting Power of
Attorney?”
An Advanced Decision is a document that allows you to set out whether or not you want
to refuse specific medical treatment, should you become ill. It allows you to make
decisions about your care in advance, so that the doctors know how to act even if you
are unable to communicate your wishes in the future.
The document is quite specific and refers to particular treatments or medical
circumstances that you include in the document. If a situation arises that you have not
covered, the document will not apply.
The Advanced Decision comes into effect once signed and witnessed properly.
Your Health and Care Lasting Power of Attorney is able to cover all medical possibilities
– not just those you might mention on the form – but it is your attorney that will make the
decisions rather than you. However, you can give instructions when making your Lasting
Power of Attorney which your attorneys must follow. You can also indicate preferences
which are guidelines to help your attorneys make the right decision.
If you make both a Health and Care Lasting Power of Attorney and an Advanced
Decision document, and one contradicts the other, the most recent document will take
precedence for the matter concerned. However, keep in mind that your attorneys should
always act in your best interests.
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23
LPA: Who’s who?
Office of the Public Guardian
The Office of the Public Guardian deals with Lasting Powers of Attorney, and Enduring
Powers of Attorney if they were registered before 2007.
Donor
The Donor is the person making the Lasting Power of Attorney. Anyone aged 18 or older
with mental capacity can be a donor.
Attorney
The Attorney is the person you have chosen to make decisions on your behalf, should
you lose mental capacity. This could be your spouse, your adult children, a close friend
or (in the case of Financial Decisions LPAs) a professional such as an accountant or
lawyer. You can choose as many attorneys as you like, and you can choose different
attorneys for each type of LPA if you want to. There are a few rules about who can be an
attorney which your lawyer will discuss with you.
Witnesses
These people witness you, or your attorney(s) signing and dating the LPA forms.
Certificate provider
You need someone to confirm that you have mental capacity to make the LPA and you
are not being pressured into it. This will typically be the lawyer who makes the LPA for
you. If you are not using a lawyer, you can use a professional such as a doctor, or
someone you have known for at least two years.
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24
Make an appointment
At April King, we have a team of lawyers and independent solicitors experienced in
drafting and submitting Lasting Powers of Attorney. Our headquarters are in Nottingham
and we have offices across the Midlands.
We would be happy to see you at your local office or visit you in your home if this is
more convenient – just give us a call on 08700 120 130 or email [email protected].
Legal disclaimer:
The information in this eBook:
Does not constitute legal advice.
Does not create a contractual relationship.
Does not form part of any other advice, whether paid or free.