9. Frequently asked questions
I already have an Enduring power of attorney, do I need to make an LPA as well?
Enduring power of attorney (EPA) was the system that was in place before LPAs. You can no longer make an EPA. However, if you made an EPA before October 1 2007 and it was correctly filled in, it is still valid and can still be registered and used.
If you have a valid EPA, you don’t necessarily need to make an LPA. However, EPAs only cover decisions about finances and property (like the property and affairs LPA). They do not cover health and welfare decisions, so some people who have a valid EPA might also want to make a health and welfare LPA to cover decisions about their care or treatment.
If I complete the forms now, does it mean that I will no longer be able to make decisions for myself?
No. The purpose of the form is to allow people to make decisions for you in the future, if you can no longer make them yourself. It does not mean that from the moment you complete the forms your attorney takes over making decisions for you.
If you make a health and welfare LPA, your attorney cannot make decisions unless there comes a point where you cannot make them yourself.
This is different for the property and affairs LPA, which allows you to say whether you want your attorney to be able to act while you still have capacity. If you do, they wouldn’t be taking over from you, as you will also be able to act. It means that your attorney will be able to help you manage your finances.
Do I need a solicitor?
You don’t have to seek legal advice, or use a solicitor, in order to make an LPA. Many people find that they are able to complete the form without legal help.
However, an LPA is a powerful and important legal document, and it can be a good idea to seek advice from a legal adviser with experience of preparing them. This is likely to cost. You might want to look at the LPA forms and read the guidance notes first, and then see if you feel you need legal advice.
Someone told me if I only appoint one attorney they wouldn’t be able to sell my house, is this true?
This would depend upon the circumstances. If someone chooses to appoint their partner as their only attorney, and they owned the house together, then the partner would not be able to sell the house. This is because attorneys cannot make decisions to benefit themselves, and selling the house would not be seen as them acting independently. In this situation it would still possible to sell the house, but it would need to be placed into a trust and then sold. This is something that a solicitor would be able to do.
If someone appoints both their partner and another attorney – for example, a son or daughter – then the two attorneys together would be able to sell the house. Similarly, if only one attorney is appointed, and they don’t own part of the house, then they would also be able to sell the house.
What happens if I don’t make an LPA?
If you don’t make an LPA, and later become unable to make certain decisions for yourself, there may be a time when no one can legally make decisions for you. This can make things difficult, such as paying bills or care costs, or making decisions about your future care.
If this happens, someone may need to apply to the Court of Protection to become your deputy. This gives them similar powers to that of an attorney. A relative or friend can apply to be your deputy, or a professional may be appointed. The process of becoming a deputy is a lot more time-consuming and expensive than an LPA. A deputy must also do some things on an ongoing basis, such as paying an annual fee and submitting an annual report, so it is usually easier for someone to be an attorney rather than a deputy.