Ensuring that a Lasting Power of Attorney covers off all areas requires that you fill it out carefully and thoughtfully. Here’s what you’ll need to consider…
In order to first set up a Lasting Power of Attorney, you will need to download and fill out the forms. If you don’t have internet access or a computer, you can request for the forms to be posted to you by calling the Office of the Public Guardian on 0300 456 0300.
How long does it take to fill out an LPA form?
There are two different forms, depending on whether you’re filling out a property and finance LPA or a health and welfare LPA.
If you’re looking to set up an LPA for both of them, you’ll need to download both forms. You can either fill out the form online, and then print it, or print the forms and fill out by hand. In both cases the forms will need to be signed by particular people and then sent off to the Office of the Public Guardian.
Each form has 15 different sections. There are also continuation sheets that you must fill in if there is extra information you need to include that does not fit onto the form. You must use the correct continuation sheet for the section that you are filling in. One sheet provides space for you to nominate additional attorneys if that’s your decision. The other sheet lets you include information on how you would like your attorneys to make decisions for you including your preferences and instructions.
The good news is that the forms come with guidance notes, which will be helpful while filling them out. It probably won’t take longer than a few hours or so, but this will depend on whether you’re getting any help from anyone and how detailed the instructions and preferences are. Also, because the forms require various other people to sign them, including the attorneys, witnesses and certificate providers, they may end up being filled out over a couple of days, unless you can get everyone in the same room at the same time.
Who needs to sign a Lasting Power of Attorney?
The donor
This is the person for whom the LPA is being created for. They need to have mental capacity when they sign the form otherwise it is invalid.
All named attorneys
Whether you have one attorney, or four, you will need to get all attorneys to sign the LPA forms.
Witnesses
These are people who sign the LPA form to confirm that they witnessed either the donor signing and dating the LPA form; or the attorney(s) signing and dating the LPA form. Somebody must act as a witness when you and your attorney sign the LPA form. The person who witnesses your signature must be over the age of 18 and cannot be one of your attorneys or replacement attorneys. Your certificate provider can act as your witness.
Certificate provider
The certificate provider is someone who can certify that you have the mental capacity to make a
LPA, that you understand what it is and that you are making the decision yourself and are not being pressured into it.
Picking a certificate provider
A certificate provider can be a professional, such as your doctor, social worker or a solicitor, or
someone who has known the donor for two years, but is independent, that is, isn’t a family member or an attorney and who will not benefit from the LPA.
Professionals:
This could be:
• A healthcare professional such as a GP
• A solicitor, barrister or advocate
• A registered social worker
• An independent mental capacity advocate
Who you can’t choose:
• An attorney or replacement attorney for the LPA you’re filling out, or one that’s already used in a different LPA.
• A member of your attorneys’ families
• An unmarried partner of yours or any of your attorneys
• A business partner of yours or one of your attorneys’ business partners
• An employee or one of your attorneys’ employees
• An owner, manager, director or employee of a care home where you or a member of your
family lives
• Anyone working for a trust corporation appointed as an attorney in a financial decisions LPA.
If you’re not sure if someone can be a certificate provider, contact the Office of the Public Guardian on 0300 456 0300 or email customerservices@publicguardian.gsi.gov.uk
The difference between preferences and instructions
When writing your LPA, you will have the opportunity to state particular preferences and instructions for your attorneys. This is a useful time to get professional advice, as complicated or badly worded instructions or preferences can make an LPA unworkable.
Preferences
These are what you’d like your attorneys to think about when making decisions but they don’t
necessarily have to follow them. When writing preferences, it makes sense to avoid using words such as ‘must’ and ‘shall’ and instead use language such as ‘prefer’ and ‘would like’.
Instructions
This is what your attorneys MUST do if they’re acting for you. When writing your instructions, use words such as ‘must’, ‘shall’ and ‘have to’. Instructions can sometimes cause problems, so it’s important that you read through them for sense and likelihood that your attorneys will be able to carry them out. Many legal experts would try to dissuade people from making many, if any, instructions in their LPA because they are extremely restrictive and can cause more problems than solve them.
Examples of preferences for both types of LPA
‘I’d prefer to live within five miles of my sister.’
‘I’d like my pets to live with me for as long as possible. If I go into a care home, I’d like to take them
with me.’
‘I would like to maintain a minimum balance of £1000 in my current account.’
‘I would like to donate £100 each year to the Alzheimer’s Society.’
In both cases, the donor has clearly stated what they’d like to happen, but, if for any reason they can’t be completed, for example, the only care home available can’t accept pets, then the attorneys will know that the person with dementia won’t mind too much.
Examples of instructions for both types of LPA
‘My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.’
‘My attorneys must ensure I am given only vegetarian food.’
‘My attorneys must consult a financial advisor before making investments over £10,000.’
‘My attorneys must instruct a tax accountant to prepare my annual tax return.’
What is a statement of wishes?
A Statement of Wishes is a document which forms part of the Unforgettable dementia-specific LPA forms.
It covers all the decisions you may need to make when caring for someone with dementia. It sits in addition to the Lasting Power of Attorney forms and acts as a guidance to those caring for you. It is different to the “Preferences” section of the LPA as it provides you with more space to go into detail about how you wish your attorneys to act once the LPA has been registered. Because it is a separate document to the LPA, it can be updated and amended even after the LPA has been registered if necessary.
A Statement of Wishes is not legally binding. Your attorneys should bear in mind your wishes when making decisions, but are not legally bound to follow them if they think that there is a better alternative for you.
Why is a Statement of Wishes a useful document?
Unforgettable have created this unique document to sit alongside the LPA documents as a guide for attorneys when making decisions. We prefer to write a separate document rather than writing them in the Lasting Power of Attorney form because you can update the Statement whenever you want. You would not be able to do this if you write your wishes in the LPA and then register it. This is because once registered, you cannot change a Lasting Power of Attorney. If you did want to change your Preferences, you’d have to create a whole new LPA, which would incur additional costs.
The Statement of Wishes document that forms part of the Unforgettable LPA documents provides a basis for you to create a more complete version for you. It is in Microsoft Word format, so you can edit it further.
What topics might you cover in a Statement of Wishes?
Health and care:
• Medical treatments
• Anti-psychotic drugs
• Drug trials
• Transfusion and therapy
Welfare:
• Care home or sheltered care
• Personal and intimate care
• Use of monitoring and tracking devices
Financial Affairs:
• Cash
• How should your attorneys manage your financial affairs?
• Gifts of money
• Preferences about how your money is invested
In a recent survey carried out by Unforgettable about setting up a Lasting Power of Attorney, we discovered that 41% of people who had already set up a LPA did not feel it covered all the important decisions that they needed to make when caring for someone with dementia.
In fact, they wanted to see guidance on covering off a range of dementia care-related topics, which included:
• Going in to a care home (78%)
• Who would you be happy, or not happy, to provide intimate care (61%)
• The use of anti-psychotic drugs (43%)
• The use of trackers (35%)
• The use of CCTV (30%)
• Enrolling on drug trails (26%)
That’s why Unforgettable have created a LPA service that helps you include a Statement of Wishes that will cover off these topics.
Instructions around gifts
This is an area that needs some thinking about because there are strict limits on the kinds of gifts attorneys can give on behalf of the donor. They can gives presents for what is known as ‘customary occasions’ – birthdays, weddings, religious holidays – and they can donate to charities that you previously gave to.
However, attorneys cannot authorise trust funds for grandchildren, payment of school fees for
grandchildren, interest-free loans to family and maintenance for any family member other than a wife, husband, civil partner or child under 18.
Instructions around fees
If you’re using a professional as one of your attorneys, you will need to write in your LPA what you’ve decided to pay them. If you’re also paying a non-professional attorney (such as a husband or wife), then this will need to be stated, too. Many non-professional attorneys will be happy to act for you without being paid, but they’ll still be able to claim expenses such as travel or postage.
For example:
‘I want each of my attorneys to be paid £XX per year for their services under this LPA. My attorneys will stop being paid when my money drops to £XX.’
Signing your LPA
Once you have filled out the different sections of the Lasting Power of Attorney, it will need to be signed, and in the correct order.
1. The donor must sign first. A witness must watch you signing the LPA and sign straight after you.
2. The certificate provider must sign next. This is the person who confirms that you understand what you’re doing and you’re not being forced to do it. They will sign section 10 of the form and must sign after the donor but before the attorneys.
3. The attorneys and replacement attorneys must sign next. Their signatures must be witnessed (and the witness can’t be the donor). However, the attorneys and replacement attorneys can witness each other’s signatures.
People to notify before the LPA is registered
Before it is officially registered, the Office of the Public Guardian will wait four weeks while any people that are notified have a chance to object to anything with the LPA.
You can have up to five people listed as ‘people to notify’. Ideally, there’ll be people who know you well and able to raise concerns about your LPA if necessary. This might be the case if they thought you were making the LPA under pressure, or if fraud was involved. It’s basically another safeguarding mechanism but it is an optional part of the LPA.
You will list the people to notify in section 6 of the LPA. Then, the person applying to register the LPA will fill out separate forms (LP3) which will be sent off to these people just before sending the LPA form to the Office of the Public Guardian.
Once they receive these notification forms, they have three weeks to raise any concerns. These
concerns can’t be simply because ‘they don’t like it’. They will need to be based on ‘factual’ or
‘prescribed’ grounds.
Factual objections
This means the LPA is factually incorrect. For example, the donor mentioned or one of the attorneys is now dead, or one of the attorneys is bankrupt or lacks mental capacity.
Prescribed objections
This could be objections based around your own thoughts or opinions, such as your belief that the donor doesn’t have the mental capacity to make an LPA, there was fraud (e.g. someone faked a signature), or the donor was pressured to fill out the LPA.
If the ‘people to be notified’ are happy with the LPA, they don’t have to do anything.
Need help filling out Lasting Power of Attorney documents? Unforgettable can help! We’ve created an online questionnaire to help you fill out your LPA and cover off any issues related specifically to dementia and the challenges it can present. Click here for more information.
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