It is incumbent upon every member of the Armed Forces to ensure that they are as prepared as they can be for any circumstance that Service life might place in their path. This philosophy is made clear to Service Personnel (SP) from the day that they join. Professional preparedness should continue for the entirety of their career and spans the whole range of Service activity from the serviceability of personal weapons, clothing and equipment to personal health and fitness.
In addition to this high level of military preparedness, it is the responsibility of the individual to ensure as far as is practicable that their personal affairs are in order. There are a number of ways in which this can be achieved: regular and accurate updating of JPA and other personal information systems, writing a will or Service Will etc. All of these provide accurate information that can be accessed and acted upon in the event of illness, injury or death. However, instances of mental incapacity present far more difficult problems and the consequences are potentially far more serious.
Accidents and injury can befall anyone at any time, not just on operations. If an individual suffers an injury that prevents him or her from having the mental capacity to deal with their own affairs, these affairs are placed in the hands of others with the cost of administration being recovered from the individual’s estate. This may result in additional stress and financial hardship for both the individual and their family.
What is a Lasting Power of Attorney (LPA)?
Any person of 18 years and over can choose to make a LPA. A LPA is the legal document which allows an individual (referred to as a Donor) to nominate a person or people (referred to as Attorneys) to make decisions on behalf of the Donor should they be unable to make decisions due to a lack mental capacity or other reasons, such as a prolonged period abroad. Just as a Will details the wishes of the individual to ensure that their family is provided for after death, a LPA can provide security for their family at a time when the individual is incapacitated for whatever reason. If a LPA is not in place, a spouse, parent or civil partner would have to apply to the Court of Protection before they could act on that person's behalf (dealing with financial institutions, utility companies, etc). This all takes time, effort and money at what may already be a traumatic time.
Where necessary, individuals while still of sound mind, can decide how they would like their affairs to be conducted and who they trust to do so in the event of them becoming mentally or physically incapacitated. In order for these representatives to act on the SPs behalf they must have been properly identified and registered as Attorneys in the LPA.
Prior to the introduction of the Mental Capacity Act in 2007, another system was in place with Enduring Powers of Attorney. An EPA allowed a Donor to appoint Attorneys on their behalf with respect to property and financial affairs
Scotland, Northern Ireland and the Channel Islands have similar arrangements, but the process may differ slightly. SP wishing to produce a LPA (or equivalent) in these countries should seek help at the following links;
Three types of Power of Attorney
An ordinary Power of Attorney (PA) can be a helpful instrument to give day-to-day authority to another person or persons. However, it becomes invalid should the donor begin to lose capacity. Such powers are essentially private arrangements and there is no scrutiny of them either in creation or in use.
An Enduring Power of Attorney (EPA) could be made before 1st October 2007. Any instruments validly made before that date remain in force. An EPA works like an ordinary power of attorney until the donor begins to lose capacity to make financial decisions. At that point, the EPA should be registered with the Office of the Public Guardian (OPG). As part of that registration process, the applicant should notify relevant family members as prescribed in law. Regrettably not all attorneys do register EPAs when they should and nor do they always ensure appropriate family members are notified.
Following the implementation of the Mental Capacity Act 2005, on 1st October 2007, EPAs were replaced by Lasting Powers of Attorney (LPAs). LPAs provide safeguards that did not exist with the previous system of EPAs. These include:
- LPAs must be registered with the Office of the Public Guardian before they can be used.
- An independent person, known as a Certificate Provider, verifies that the Donor (the person making the LPA) understands the implications of making the instrument and has not been placed under any pressure to make it, and
- Donor can also choose people to be notified when an application to register the LPA is made, who can then object to the registration if they have any concerns.
Why you might consider having a LPA
For sound legal and moral reasons nobody is allowed to deal with another person’s affairs unless they have been formally nominated to do so. Contrary to popular belief, the executor of an individual’s Will or a nominated Next of Kin may not be permitted to assist at times of Mental or Physical incapacity.
Nobody can be forced to have a LPA
The decision is, and will remain, one that must be made by every individual. Whilst it remains a personal decision it is important that Service Personnel at every level are made aware of the benefits of having a LPA. This is a process that is not restricted to those deploying on operations as any one could find themselves in this situation at any time.
The benefits of a Lasting Power of Attorney
A LPA allows a Donor to plan in advance how they would like their health, wellbeing and/or financial affairs to be looked after in the event of them losing capacity, and by whom (the Attorneys). A LPA provides the legal foundation for a Donor to determine how decisions should be made on their behalf because:
- It has to be registered with the Office of the Public Guardian before it can be used.The Donor must choose someone to provide a ‘certificate’, which means they confirm that the Donor understands the significance and purpose of what is being agreed to. This person is called the ‘Certificate Provider’.The Donor can determine who gets told about their LPA when it is registered (so they have an opportunity to raise concerns).
The signature of the Donor and the signatures of the chosen Attorneys must be witnessed.
Nominated Attorney(s) must follow the Code of Practice of the Mental Capacity Act 2005 and act in the Donor’s best interests.
The Office of the Public Guardian provides helpful support and advice.
The different types of Lasting Power of Attorney
There are two different types of LPA:
- Property and Financial Affairs LPA: This type of LPA allows the Donor to choose one or more people to make decisions about property and financial affairs on their behalf. It 3 allows the Attorney to make a wide range of decisions relating to the financial wellbeing of the Donor such as bank accounts, payment of bills, sale of property etc. A Donor can appoint someone as an Attorney to look after their property and financial affairs at any time. However, Donors can also include conditions that mean the Attorney can only make decisions when the Donor has lost the ability to do so themselves.
Health and Welfare LPA: This type of LPA allows the Donor to choose one or more people to make decisions for things such as medical treatment. It allows the person nominated as the Attorney to make decisions relating to the use or refusal of treatment, along with the general health and welfare of the Donor. A health and welfare LPA can only be used if the Donor lacks the ability to make decisions for themselves. A formal assessment of capacity may be carried out by someone with the appropriate professional qualifications. In cases where there is disagreement of the Donor's capacity, an application to the Court of Protection may need to be made to determine whether registration would be in the Donor's best interests.
Filling in a Lasting Power of Attorney form
Donors do not normally need professional advice to make a LPA as the forms are designed to be easy to complete. Depending on the complexity of individual circumstances, it may be necessary to get advice from a solicitor before making a LPA. However, solicitors will charge for this service. Details relating to the completion of these forms can be found at Annex A.
How to register a Lasting Power of Attorney
There are two forms that need to be completed in order to register a LPA. They must be completed by the Donor or the Attorney, depending on who is applying to register the LPA. The two forms are:
a. LPA001 - Notice of intention to apply for registration of a LPA
b. LPA002 - Application to register a LPA
Donors (or Attorneys) can also download all of the relevant forms and guidance from the Directgov website at www.direct.gov.uk/mentalcapacity or the Ministry of Justice website at www.justice.gov.uk/about/opg.htm. Forms are also available in other formats, such as large print or Welsh versions. To request these or any other forms or guidance, contact the Office of the Public Guardian by calling 0300 456 0300 and select option two. The phone line is open Monday to Friday from 9.00 am to 5.00 pm, except on Wednesdays when it is open from 10.00 am to 5.00 pm.
Form LPA001 is used to let certain people know that the LPA is being registered. These are the 'people to be told’ that are named on the LPA form. They can object if they are worried about the LPA - for example, if they think the Donor has been pressured to make it. They will have up to six weeks to do this.
Form LPA002 asks the Office of the Public Guardian to register the LPA. The Donor (or Attorney) will also need to send the following items:
a. The original LPA form.
b. The fee, or form LPA120A if applying for a fee remission or exemption.
The documents should then be sent to:
The Office of the Public Guardian
PO Box 16185
Registering the Lasting Power of Attorney
Even if there are no problems with the forms2 it can take a considerable amount of time to register a LPA, SP are urged not to wait until they have been notified for operations before starting this process. A LPA cannot be registered and used immediately and the current waiting time to register a LPA is 13 weeks because every application has to be checked by the Office of the Public Guardian to ensure that there are no errors. This includes the six-week period during which people have a chance to object to the LPA being registered. An Attorney can only use a LPA once the process has been completed and has finally been registered with the Office of the Public Guardian.
Lasting Power of Attorney - what it costs
When an application is made to register an LPA there is a fee of £130 payable to the Office of the Public Guardian. This fee is separate for each LPA you apply to register; therefore a Property and Financial Affairs and a Health and Welfare LPA with the Office of the Public Guardian will cost £260. The cost covers the work involved in processing an application, checking the documents, issuing notices and notifying applicants if there are any errors. The person registering the LPA is responsible for paying any fees and this can be done by cheque or Debit/Credit card. The OPG also operates a remission and exemption scheme for those on low incomes. More details can be found on the websites indicated above, or by calling the OPG Customer Contact Centre.
Many solicitors offer a form completion and registration service however, there will be additional charges incurred if a solicitor is engaged to assist in this process. Although this service will clearly take much of the stress and uncertainty out of the process, these charges are significant; even for fairly simple LPAs this may well be in excess of £500 (+ VAT).
Refunds and corrections to a LPA application
The fees are payable upon application, and no refunds are available. Some mistakes in the LPA may be corrected without the need for another formal application and a new fee. In case the LPA is invalid and cannot be registered, the OPG offers a reduced repeat application fee of £65 for the Donor in case they wish to make a fresh LPA.
Getting a copy of a Lasting Power of Attorney
Once a LPA is registered the Donor (or Attorney) will be sent the original instrument which bears the OPG's registration (or, validation) stamp. The Donor can make certified copies of the registered LPA if they still have capacity. This can be done by copying the registered document and writing the following text at the bottom of each page of the document:
‘I certify this is a true and complete copy of the corresponding page of the original LPA’
The Donor should then sign and date each page after this declaration. If the Donor has lost capacity, the attorney will be able to get a certified copy made by a solicitor. The process for creating a certified copy is the same as it is for the Donor as detailed above. In exceptional cases, the OPG may be able to provide an office copy of the registered instrument for a fee of £35 per copy.
Making sure no one can be forced into making a Lasting Power of Attorney
No one can be forced into signing a LPA against their will. A ‘certificate provider’ must complete part B of the LPA. A certificate provider is someone who speaks privately with the Donor to make sure they understand the powers they are giving their Attorney(s). A certificate provider can be someone the Donor has known for two years or someone who has a professional skill or knowledge of the situation. For example, it could be a doctor, social worker or solicitor. However, family members cannot act as certificate providers as they are considered not to be independent of the Donor - this includes people related by marriage and step-parents or step-children. The certificate provider has an important role in checking that there has been no fraud, or pressure put on the Donor to make the LPA.
If you already have an Enduring Power of Attorney
The LPA replaced the previous Enduring Power of Attorney (EPA). An EPA also allowed a nominated Attorney to make decisions relating to Property and Financial matters on behalf of a Donor. An EPA may still be used if made and signed before October 2007.