A guide to the parties named in an LPA and their roles
Setting up Lasting Powers of Attorney is a particularly important step in planning for future uncertainties. Having LPAs in place gives you peace of mind that your affairs and wellbeing will be looked after by people you know and trust if you are unable to make or communicate decisions yourself.
This article explains who’s who in the LPA and indicates which roles are compulsory, which optional and any criteria that must be met to take on each of the roles.
That’s you! The main purpose of an LPA is for you to appoint one or more Attorneys ready to step in to make decisions on your behalf if you are no longer able to.
Who can create an LPA?
You can make an LPA if:
- you are at least 18 years old
- you have the mental capacity to do so
Attorneys are the people you pick to make decisions for you if you lose capacity. Attorneys do not need to be professionals, but they should be people you trust and know well, such as your husband, wife, partner, adult children, or good friends.
Since the role of Attorney involves great responsibility it is essential that you think carefully about who should be appointed. To reflect this the law requires strict formalities to be followed when setting up an LPA and for other people to have a role in the process to ensure that you are doing so with full understanding and without undue or malign influence.
Who can be an Attorney?
Anyone can be an attorney, if:
- they are at least 18 years old
- they have mental capacity
The Attorney of a Property and Financial Affairs LPA must in addition have not been declared bankrupt. If an Attorney becomes bankrupt, their power of attorney will cease.
An Attorney may be an individual that you know, who acts non-professionally or a professional such as a solicitor who would charge to undertake the role.
A company, such as a Trust Corporation, may be appointed as Attorney under a Property and Financial Affairs LPA, but an Attorney of a Health and Welfare LPA must be a person.
Ceasing to act as an Attorney
An Attorney can choose to stop acting. There are also some cases in which the law requires someone to stop acting as an Attorney. Any replacement attorneys listed in the LPA will take over if an Attorney stops.
An Attorney must stop acting if:
- The donor takes him/her off the LPA
- The Attorney loses mental capacity and cannot make decisions any more
- A Property and Financial Affairs Attorney becomes bankrupt or subject to a debt relief order
- The Attorney was married to, or in a civil partnership with, the Donor and gets a divorce or an annulment, unless the LPA says you can keep acting as an Attorney
- One joint Attorney stops acting, then the other joint Attorneys must also stop acting, unless the LPA says that they can carry on making decisions.
Since an original Attorney may have to stop acting for various reasons, it is sensible to name Replacement Attorneys who may step in to replace them.
The criteria to be a Replacement Attorney are the same as to be an original Attorney.
The Certificate Provider confirms that no one is forcing you to make an LPA against your wishes, and that you understand what you are doing.
Who can be a Certificate Provider?
Your Certificate Provider must either:
- have known you well for at least two years, such as a friend or colleague.
- have relevant professional skills, such as a doctor or lawyer or professional Will writer.
Some people cannot be a certificate provider:
- an Attorney or Replacement Attorney for the LPA
- an Attorney or Replacement Attorney in any other LPA or Enduring Power of Attorney (EPA) that you have already made
- a member of your or your Attorneys’ families – including wives, husbands, civil partners, in-laws, and step-relatives
- an unmarried partner, boyfriend, or girlfriend of yours or of any of your Attorneys – whether or not they live at the same address
- your business partner or one of your Attorneys’ business partners your employee or one of your Attorneys’ employees
- an owner, manager, director, or employee of a care home where you live, or a member of their family
- anyone running or working for a trust corporation appointed as an Attorney in a financial decisions LPA
Person to Notify
You can choose up to five people to notify about your LPA when it is about to be registered.
These should be people who know you well and would be willing to raise concerns about your LPA. They can object to the LPA if they think you were under pressure to make it or if they think fraud was involved.
However, you do not have to choose people to notify.
Your signature as Donor and the signatures of each Attorney and Replacement Attorney must be witnessed, with the witness then signing to confirm this.
The witness must be physically present when your or an Attorney signs the LPA.
Who can be a Witness?
- Anyone who is at least 18 years old, apart from the Donor
- The Certificate provider and any people to notify can be a witness
- Attorneys or Replacement Attorneys can witness each other’s signature, but they cannot witness the Donor’s signature.