The following guide looks at how to create an LPA, the registration process and, in particular, the cost of Lasting Power of Attorney fees.
A brief overview is also provided of the LPA refund scheme introduced by the government for anyone who overpaid Lasting Power of Attorney fees during the qualifying period.
The different types of Lasting Power of Attorney
It is all too often assumed that if someone becomes seriously ill or loses the mental capacity to make their own decisions, that their loved ones can automatically manage their affairs on their behalf.
Unfortunately, unless you already have a Lasting Power of Attorney (LPA) in place, a complex and costly application would need to be made to the Court of Protection for a Deputyship Order for your next of kin or anyone else to be able to make important decisions for you.
A Lasting Power of Attorney is a legal document that allows an individual to appoint another person, or persons, to make decisions on their behalf. The person creating the LPA is described as the ‘donor’, while the person appointed to act is referred to as an ‘attorney’.
There is no limit on the number of attorneys that you can appoint, and you may want to appoint different attorneys to make different types of decisions. You can also specify whether your attorneys act jointly or independently, depending on the type of decision they need to make.
There are two different types of Lasting Power of Attorney: one for financial decisions and one for health and welfare decisions.
A financial LPA can, where permission has been given, come into force as soon as it has been registered with the Office of the Public Guardian, even where you still have the ability to make your own decisions. This may be useful where you are too ill to get out of the house or you have been hospitalised.
However, for any decisions to be made about your health and welfare, the law requires that you must first have lost the mental capacity to decide things for yourself.
How to create a Lasting Power of Attorney
To create a Lasting Power of Attorney you will need to use the prescribed forms: LP1F for financial matters and LP1H for health and welfare matters.
You must be aged 18 or over to create an LPA. Your attorneys must also be aged 18 or over, and at the time of entering into the deed, both you and your attorneys must have the mental capacity to make your own decisions.
You can appoint anyone to act as an attorney, for example, your spouse, an adult child, another relative or even a friend, although you should only appoint someone that you trust will make decisions in your best interests.
The form will require you to provide the details of each attorney, whether they are to act jointly or independently and, for a financial LPA, when this is to take effect. For a health and welfare LPA you will also be required to specify whether you want your attorneys, or your doctors, to make the decision whether you should receive life-sustaining treatment if the need ever arose.
In addition to your attorney(s), you will also need to nominate anyone you wish to be notified of your intention to create a Lasting Power of Attorney. This provides the prospective donor with a safeguard, allowing nominated individuals to raise any objections prior to registration.
The application will need to be signed by the donor, the attorney(s) and a certificate provider. A certificate provider is an independent person required to verify that the donor understands what s/he is signing and that they have not acted under any pressure.
Lasting Power of Attorney fees explained
There is no charge to complete the Lasting Power of Attorney forms online. However, you will need to pay a fee to register the LPA with the Office of the Public Guardian. The fee is £82 per form, so if you create a financial LPA, as well as a health and welfare LPA, the total fee will be £164.
You can pay the applicable Lasting Power of Attorney fees by debit or credit card online. If you complete your application using paper forms, you can post a cheque, together with those forms to the Office of the Public Guardian.
Lasting Power of Attorney fees reduction
If you are on a low income you may be eligible for a reduction of 50% of the Lasting Power of Attorney fees. However, you will need to provide documentary evidence of your annual income to be entitled to this concession.
To qualify for a fee reduction you must be in receipt of a gross annual income of less than £12,000 and you will need to complete Form LPA120.
When calculating your gross annual income you need to take into account not only any weekly or monthly salary, but any non-means tested benefits such as Attendance Allowance and Disability Living Allowance, as well as any pensions or interest from investments.
Lasting Power of Attorney fees exemption
If you are in receipt of certain means-tested benefits you may be eligible for an exemption from the Lasting Power of Attorney fees. Again, you will need to complete Form LP120 and provide documentary evidence of your benefits to be entitled to this concession.
To qualify for a fee exemption you must be in receipt of one of a number of means-tested benefits, including Income Support, Income-based Employment and Support Allowance, Income-based Jobseeker’s Allowance and the Guarantee Credit element of State Pension Credit.
You may also be eligible to pay less if you are in receipt of other benefits, for example, Working Tax Credit or Universal Credit, although in some cases the Office of the Public Guardian will need to examine your individual circumstances before making a decision as to whether you qualify for a fee reduction or exemption.
Lasting Power of Attorney fees refund
If you applied to register an LPA between 1 April 2013 and 31 March 2017 you may be entitled to a partial refund of your Lasting Power of Attorney fees.
This is a government run scheme to refund overpayments in fees during this qualifying period, namely a period where the Office of the Public Guardian were still charging £110 per document, even though their operational costs no longer justified this higher level of fee.
You mays also be entitled to a partial refund where you registered an Enduring Power of Attorney (EPA) during this time frame. EPAs were, in large, replaced by the Lasting Power of Attorney in 2007. However, in some cases where an EPA had been drafted prior to the cut-off date of 1 October 2007 but not registered until post 1 April 2013, you may still qualify for a refund.
The level of refund will depend exactly when you registered the Lasting or Enduring Power of Attorney and are set as follows:
- Fee paid April to September 2013 – £54
- Fee paid October 2013 to March 2014 – £34
- Fee paid April 2014 to March 2015 – £37
- Fee paid April 2015 to March 2016 – £38
- Fee paid April 2016 to March 2017 – £45.
For those of you that paid a reduced fee, you will only receive half the applicable Power of Attorney refund.
Lasting Power of Attorney fees charged by solicitors
You can create a Lasting Power of Attorney without the help of a solicitor. That said, if you want to ensure that no mistakes are made, you should seek professional help. In the event that you attempt to register an LPA with a form containing errors, this could void the entire process.
Moreover, if you have lost mental capacity in the interim, this will leave your loved ones with no option but to make a costly application to the Court of Protection.
The Lasting Power of Attorney fees charged by solicitors can vary, although in some cases the solicitor will charge a fixed fee that will be set at the outset. In this way you will know exactly where you stand and the total cost involved.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.
