Authorised and Regulated by the Solicitors Regulation Authority, No.: 265043
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Elderly Advice / Lasting Power Of Attorney cont.
If you choose to have more than one attorney, you must decide how your
attorneys will act. They can make decisions together ('jointly'), they can act
together and separately ('jointly and severally'), or a combination of the two.
When making decisions, your attorney must follow the Mental Capacity Act.
This means that they:
must act in your best interests
must consider your past and present wishes
cannot take advantage of you to benefit themselves
must keep all of your money separate from their own.
If the attorney fails to comply, the LPA could be cancelled. If an attorney has taken advantage of you, this will be investigated by the OPG and the person could be prosecuted. Having an LPA in place can therefore offer you protection from potential future abuse.
Once you have completed the form, you will need to get someone to sign it to state that you have the mental capacity to make an LPA. This means you have the ability to make this decision; you understand what an LPA is and you made the decision yourself. The signed form is a 'certificate of capacity' and the person is called the certificate provider.
Each attorney must sign the form to say that they agree to act as your attorney if needed in the future. They will also sign to show that they understand the duties this involves.
The form must be registered at the OPG before it can be used. There is a fee for registering each LPA, currently £82.00 for each LPA.
The Office of the Public Guardian is responsible for the registration of LPAs, including dealing with objections and maintaining the register of LPAs.
The OPG will also deal with any issues (including complaints) about the way in which an attorney is exercising their powers. If there are any problems, the OPG may pass on the case to the Court of Protection, who can:
decide whether a person has capacity to make particular decisions for themselves
make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions, for example making a decision about where someone lives
decide whether an LPA is valid
remove attorneys who fail to carry out their duties
hear cases concerning objections to register an LPA (someone may object to an LPA being registered if they feel that the person was forced into making it, or that the proposed attorney is not suitable).
You will also still be able to act and make your own decisions. It means that your attorney can help you manage your finances and you both have the power to act. Only if you lose mental capacity will they have to make decisions for you.