Will Trust and Protect Ltd.

Helping you to protect your family's future

Attorney Guidance

Guidance for Attorneys

Attorney guidance from Will Trust & Protect Ltd. In making decisions with other attorneys, if you feel another attorney is not acting in accordance with their role and responsibilities you should firstly, raise your concern with the attorney, if you are not satisfied with the outcome, contact the OPG. The same applies if your decision-making is disputed. Keep notes or records of discussions so that you can demonstrate why you made the decision, and firstly, raise your concern with the person(s) making the dispute, then if you are not satisfied with the outcome, contact the OPG. Always bear in mind that the key objective at all times is the best interests of the donor. Even after registering the LPA, you should assume that the donor has capacity to make decisions themselves.

A person should not be treated as unable to make a decision just because they make a decision which, in your opinion, is unwise. You should only be making decisions for the donor when they are incapable of making them themselves may be capable, but have asked you to make them on their behalf. The donor may have a gradually degenerating condition, or may have capacity on one day, but not on another. You should devise a strategy for dealing with this that allows you to assess their capacity from time to time, and support them in making as many decisions as possible for them-selves, whilst allowing you to make everyday decisions like paying bills.

You might consider, for example, whether the donor has all the relevant information they need to make a decision? Could the information be presented or explained in ways that would make it easier for them to understand (e.g. by using pictures, photographs, sign language)? are there times of the day when the donor is most lucid? Could the support of a third party (e.g. a relative or friend) help the donor decide? If the donor disagrees with your decision, and they have capacity, you must go with the donor’s view. If they lack capacity you can make the decision, bearing in mind that donors can inform the OPG if they are unhappy about your decision-making (and the OPG can ask you to explain your decisions).

In deciding what is in the donor’s best interests, bear in mind: their past and recent wishes any views the donor has expressed in the past their beliefs and values the views of family members, parents, carers, etc. the possibility that the donor could regain capacity any other factors that may be specific to a donor’s circumstances any guidance in the LPA or other written statement.

There may be occasions when you need to obtain personal or confidential information about the donor from a doctor, bank, or solicitor, for example. Provided you are acting within the powers of the LPA this is appropriate, but you must only ask for information that is strictly relevant and maintain confidentiality where at all possible. Under a property and affairs LPA provided the donor has not placed restrictions you can make decisions about: Selling a donor’s house – this may involve deciding where the donor should live, and if so you would consult with those involved in making welfare decisions. If a sale would be below the property’s market value, or if you want to buy the property yourself or sell it to a family member, you may need to ask the court for authorisation.

A property and financial affairs LPA does not allow you to make decisions about the donor’s health and welfare. (A separate health a welfare LPA would allow an attorney to make such decisions.)

You should seek legal advice in such circumstances.

Selling the donor’s stocks and shares.

Making gifts on the donor’s behalf (see page 40 in frequently asked questions for more on making gifts).

But you cannot make decisions about:

making a will on the donor’s behalf, voting on the donor’s behalf , access the donor’s will unless the donor has included a condition that you can – however you can apply to the Court if you believe the will is essential in helping you carry out your role, and the person who holds the will refuses to show it to you.

Attorney guidance – Will Trust & Protect Ltd.

Frequently asked questions

Donor FAQs

Can a property and financial affairs attorney make decisions about where I live?

No.

Can my attorney give gifts on my behalf?

Unless you make a restriction stating otherwise, your attorney(s) will be able to give (limited) gifts on your behalf:

  • to charitable organisations
  • to relatives, very close friends and any attorney named in your LPA who is a relative or very close friend
  • on birthdays, weddings, anniversaries, etc. when you would usually give gifts of a value that is appropriate to your assets

You cannot authorise any gifts which would exceed the attorney’s statutory power.

What if my attorney dies?

After registration: if you have one attorney and no replacement attorneys your LPA becomes unusable. If you have a replacement, they take over. Before registration: if you have capacity you can make a new LPA and choose a new attorney.

Attorney FAQs

Are two separate fees payable if I am registering both types of LPA at the same time?

? Yes, a separate application to register fee must be paid for each separate LPA registered.

Can another attorney be added after the LPA has been registered?

No. If the donor has capacity to cancel the existing LPA he/she can do so and make a new one appointing a new attorney.

Can I make decisions about the donor’s will?

No you cannot. If the donor has capacity to make a will, they can do so if they wish. If the donor no longer has capacity to make such decisions and you think a will needs to be made or changed, you can apply to the Court of Protection for a ‘statutory will’ to be made for the donor.

Can I make decisions about the donor’s personal welfare or by someone with authority to do so under the general law?

Decisions about the donor’s personal welfare can only be made by an attorney acting under a health and welfare LPA or by someone given the authority to do so by the Court of Protection. However, if you are also appointed to perform any of these roles for the donor then you will be able to take those decisions within the limits of the powers given to you.

Can I stop being a property and financial affairs attorney?

Yes, you can stop acting as the attorney at any time. Before the LPA is registered you should formally notify the donor using form LPA005. If the LPA is registered you will need to complete form LPA005 Disclaiming Your Appointment and send this to the OPG and the donor. Contact the OPG immediately if you need to discuss this. You should also inform any other attorneys appointed on the LPA.

I am acting as a replacement attorney, should I let the OPG know?

Yes, if you are a replacement attorney you are required to advise the OPG that you are now acting as attorney. You must ensure that the LPA is returned to us to note the change on the LPA and to update the LPA register. Please note: If the LPA does not have a note of the change the replacement attorney will not be able to act.

If the donor requested that the LPA is only to be registered upon loss of capacity, does medical evidence need to be supplied to the OPG on loss of capacity?

No, we will not need medical evidence. But, as with all applications to register, we will notify the donor upon receipt to give them an opportunity to object to the registration.

If the LPA is no longer valid can the donor make another?

Yes, but only if the donor still has the capacity to do so.

Once I have served notices, what do I do next?

Once you have served the last notice you will need to send us the original LPA form, the completed registration form LPA002 and the appropriate fee.

What happens when the donor dies?

The LPA will automatically come to an end. You should send the original LPA and a death certificate to the OPG as soon as possible. We cannot give advice on how to deal with the donor’s estate. You should contact a legal advisor or a District Probate Registry for this advice.

What if I am an attorney appointed to act jointly and severally?

If you are appointed to act jointly and severally and the donor has not appointed a replacement attorney the LPA will continue providing there is at least one remaining attorney acting on behalf of the donor.

What if I am one of the attorneys appointed to act jointly?

? If one attorney can no longer act, the remaining attorney(s) cannot carry on and the LPA will end unless there is a replacement attorney.

what if I want to register my property and financial affairs LPA but don’t want my attorney to act until I lack capacity?

You can include a restriction stating how the attorney must demonstrate this – e.g. ‘my attorney(s) must not use my LPA until they have obtained medical evidence stating that I have lost mental capacity’ however this may cause problems in practice.

What if someone objects to me being appointed as an/ the attorney?

? The donor, the people to be told or other attorneys are able to object to the registration of an LPA. Other persons (apart from people to be told and attorneys) can object to registration but they have to pay a court fee.
Objections by a person to be told or an attorney will have to be either:

On factual grounds – the OPG can be asked to stop the registration if:

  • the donor is bankrupt or interim bankrupt (for property and financial affairs LPAs only)
  • the attorney is bankrupt or interim bankrupt (for property and financial affairs LPAs only)
  • the attorney is a trust corporation and is wound up or dissolved (for property and financial affairs LPAs only)
  • the donor is dead
  • the attorney is dead
  • there has been dissolution or annulment of a marriage or civil partnership between the donor and attorney
  • (except if the LPA provided that such an event should not affect the instrument)
  • the attorney(s) lack the capacity to be an attorney under the LPA or the attorney(s) have disclaimed their appointment.

On prescribed grounds – objections to the Court of Protection against registration of the LPA can only be made on the following grounds:

  • that the power is not valid as an LPA for example, the person objecting does not believe the donor had capacity to make an LPA
  • that the power no longer exists – for example the donor revoked it at a time when he/she had capacity to do so
  • that fraud or undue pressure
What if someone objects to me being appointed as an/ the attorney?

The donor, the people to be told or other attorneys are able to object to the registration of an LPA. Other persons (apart from people to be told and attorneys) can object to registration but they have to pay a court fee.
Objections by a person to be told or an attorney will have to be either:

On factual grounds – the OPG can be asked to stop the registration if:

  • the donor is bankrupt or interim bankrupt (for property and financial affairs LPAs only)
  • the attorney is bankrupt or interim bankrupt (for property and financial affairs LPAs only)
  • the attorney is a trust corporation and is wound up or dissolved (for property and financial affairs LPAs only)
  • the donor is dead
  • the attorney is dead
  • there has been dissolution or annulment of a marriage or civil partnership between the donor and attorney
  • (except if the LPA provided that such an event should not affect the instrument)
  • the attorney(s) lack the capacity to be an attorney under the LPA or the attorney(s) have disclaimed their appointment.

On prescribed grounds – objections to the Court of Protection against registration of the LPA can only be made on the following grounds:

  • that the power is not valid as an LPA for example, the person objecting does not believe the donor had capacity to make an LPA
  • that the power no longer exists – for example the donor revoked it at a time when he/she had capacity to do so
  • that fraud or undue pressure

The LPA register is a searchable database containing the details of all registered LPAs. It is important to remember that once an LPA is registered, certain pieces of personal information will be available to anyone who applies to search the register.

What if the donor or attorney cannot afford the application to register fee(s)?

The fee is normally paid from the donor’s assets, however, if you cannot afford it you can ask us to waive payment. See the OPG’s guidance on fees, exemptions and remissions for more information.

What if the original LPA is missing?

We will not usually accept an application to register without the original LPA form. However, we can register a ‘certified copy’. You can certify copies yourself as soon as you have made the LPA, in case the original gets lost before registration. If you have not done this, a qualified provider can certify a copy (for a fee) if he prepared the LPA and has a copy on file. You will also need to send a written statement explaining how the original was lost. If only an uncertified photocopy is available, it cannot be registered without an order of the court.

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What information will be on the register?

The type of information made available from the register will depend on the type of search that someone applies for. There are two types of search: a first tier and a second tier search, with each providing different levels of information to the applicant.

The first tier search provides limited data about the donor and the LPA. Anyone who has made a first tier search can undertake a second tier search. The applicant must explain in detail to the OPG why they require the information and show that the request is in the donor’s best interests. This second tier search relates to further information about the donor only. There is not a defined list of the information disclosed in a second tier search because it will be different in every case, depending on what is required and what is in the donor’s best interests. Guidance for people who want to make a lasting power of attorney for property and financial affairs Need help? 0300 456 0300  gov.uk/power-of-attorney

Where can I get information on applying for an order from the Court of Protection?

Information on how to make an application to the Court is available from HM Courts & Tribunals Service website under the Court of Protection heading or you can call the court enquiry line on 0300 456 4600.

Where do I get extra copies of the registered LPA?

The Donor can ask for certified copies of the registered LPA if they still have capacity. This can be done by copying the registered document and writing the following text at the bottom of each page of the document:

Who else should be notified of the application to register the LPA?

You must notify the people to be told listed in the LPA using form LPA001. Once you have decided to make an application to register, this should be the first thing you do.

Why does the OPG have a register?

The Mental Capacity Act 2005 sets out the functions of the OPG. One of these is to establish and maintain a register of LPAs. One of the purposes of the register is to allow those with an interest, such as healthcare professionals, to search the register to see whether an LPA has been registered by the OPG for a particular person.

Will anyone replace me and if so, who?

Possibly – if you decide to stop or cannot continue as attorney, a replacement attorney could act as a replacement if the donor has made arrangements for this in the LPA document. Please note: The donor can appoint a replacement attorney either to act as a replacement for a specific attorney only or alternatively he/she can appoint a replacement to replace whoever first stops acting.