How to ensure that safeguards are in place when you give someone the legal authority to make decisions on your behalf?
An LPA is not valid and your attorney(s) won't have the authority to act on your behalf unless it is registered (Lasting power of attorney) with the Office of the Public Guardian (OPG). Both the LPAs can be registered as soon as it is properly signed and before you lose the mental capacity to act, there is a 4-week waiting period. It is wise, therefore, to register before you lose the mental capacity, in order to avoid the possibility of your attorney(s) being unable to act on your behalf because they are still awaiting registration.
However, even after registration, your attorney(s) will only have the authority to act under your LPA-HW once you are no longer mentally able to make those decisions for yourself. On the other hand, the LPA-PA can take effect immediately upon registration, even if that is before you lose the mental capacity to act for yourself, provided this is specified in the LPA itself.
What safeguards are there?
It is of upmost important that you only appoint someone you trust to act as your attorney(s). An LPA is a very powerful document.
There are a number of safeguards in place to help prevent abuse of the system by attorneys appointed under an LPA. These safeguards are:
Attorneys have no authority to act unless the LPA is registered with the Office of the Public Guardian (OPG).
Those intending to register an LPA must give notice of their intention to the 'people to notify' (if any) listed in the LPA. This is so they have the chance to object.
An LPA must have a certificate from an independent person (the 'certificate provider') confirming that the person (the 'donor') who is giving the LPA understands what he or she is doing and has not been influenced or pressurised to make the LPA.
LPA attorneys must follow the LPA Code of Practice, which provides guidance on the Mental Capacity Act 2005. If they don't, and neglect their duties, they can be found guilty of a criminal offence with possible imprisonment.
If any evidence is presented to the OPG of LPA attorneys not looking after the donor's best interests, the Public Guardian will take appropriate action.
Donors can give their attorneys instructions in the LPA specifying what they do and don't want their attorney(s) to do.
There are certain legally imposed restrictions on what your attorney(s) may do on your behalf under the authority of an LPA. For example your LPA attorney(s) can't:
Consent to place a child up for adoption or consent to the adoption of a childConsent to you having sexual relationsGive or consent to you being given medical treatment for a mental disorder if your treatment is regulated by Part 4 of the Mental Health Act 1983Vote on your behalfConsent to you entering into a marriage or civil partnershipConsent to you obtaining a decree of divorce or dissolution of a civil partnership on the basis of two years' separationMake your WillAct as your litigation friend You can revoke a Lasting Power of Attorney As long as you have the mental capacity to make decisions for yourself, you may revoke an LPA in the following way:
A donor, with the mental capacity to act, can revoke a lasting power of attorney (LPA) by sending a revocation notice to the attorney(s) and the Office of the Public Guardian (OPG). If the LPA was registered, the OPG will cancel the registration of the LPA when they receive the revocation notice, but only if it is satisfied that the donor has taken all the necessary legal steps to revoke it. The OPG will then also inform the attorney(s) and the donor of the cancellation of the LPA registration.
A property and financial affairs LPA is automatically revoked if:The donor becomes bankruptIf only one attorney is appointed or more than one attorney is appointed to act jointly with in neither case a provision for any replacement attorney(s) and any of the attorneys become bankrupt
Both a property and financial affairs LPA and a health and welfare LPA will become automatically revoked if:The attorney refuses to take up their appointment and that attorney is the only attorney appointed in the LPA or they are appointed to act jointly with other attorneys and in neither case is there provision for any replacement attorney(s); orThe donor and the sole attorney, or one of the attorneys appointed to act jointly, were married or in a civil partnership with each other but have since been divorced or ended their civil partnership, and there is no provision in the LPA to the effect that this won't affect the attorney's appointment.