Third party financial management

So far it appears that creating an LPA or Lasting Power of Attorney appears to be a simpler setup than to specifically take control of financial systems.

How to make a lasting power of attorney

  • Choose your attorney (you can have more than one).
  • Fill in the forms to appoint them as an attorney.
  • Register your LPA with the Office of the Public Guardian (this can take up to 10 weeks).
  • It costs £82 to register an LPA unless you get a reduction or exemption.
  • You can cancel your LPA if you no longer need it or want to make a new one.

There are 2 types of LPA:

  • health and welfare
  • property and financial affairs

You can choose to make one type or both.

I'm interested in the property and financial affairs PA.

Property and financial affairs lasting power of attorney

Use this LPA to give an attorney the power to make decisions about money and property for you, for example:

  • managing a bank or building society account
  • paying bills
  • collecting benefits or a pension
  • selling your home

It can be used as soon as it’s registered, with your permission.

When they make a property and financial affairs LPA, the donor can decide whether it can be used; As soon as it's registered.

Most people choose this option as it’s the most practical.

It means that the attorneys can help the donor with their property and financial affairs, now and in the future.

While the donor has mental capacity, the attorneys can only act with the donor’s permission.

This option is useful if the donor is able to make their own decisions but there’s another reason they want their attorneys’ help. For example, if the donor finds it difficult to visit the bank or talk on the phone, they might ask their attorneys to deal with the bank or pay bills.

When choosing an attorney, think about:

  • how well they look after their own affairs, for example their finances
  • how well you know them
  • if you trust them to make decisions in your best interests
  • how happy they will be to make decisions for you

When they make an LPA, the donor chooses one or more trusted people to make decisions (‘act’) on their behalf. These people are called attorneys.

The donor must choose at least one attorney. They can have as many attorneys as they want, but if there are too many, it may be difficult for them to all work together.

When making decisions for the donor, the attorneys must always:

  • act in the donor’s best interests
  • follow any instructions the donor put in their LPA
  • consider any preferences the donor put in their LPA

It’s important that:

  • the donor knows their attorneys well
  • the attorneys understand the donor’s beliefs and preferences well enough to make decisions for the donor
  • the donor trusts their attorneys to act in their best interests
  • the attorneys have the skills to act under the LPA. For example, do they manage their own affairs well? Are they good with money?
  • The donor should fully discuss the LPA with their potential attorneys before appointing them. Being an attorney can be a lot of work. Ask the potential attorneys to visit the ‘Acting as an attorney’ pages on GOV.UK to find out more about what’s involved.

Each attorney must:

  • understand the role and responsibilities of an attorney
  • agree to be the donor’s attorney
  • sign the LPA
  • follow the Mental Capacity Act Code of Practice

Professional attorneys

Some donors ask a professional, such as a solicitor or accountant, to be their attorney or one of their attorneys. Professional attorneys usually charge fees.

If the donor appoints a professional attorney, they must name an individual in the LPA. They cannot just give a job title or the name of a firm.

What do I need to complete the form?

  • name, address and date of birth of the donor (the person the LPA is for)
  • names, addresses and dates of birth of all attorneys and replacement attorneys
  • names and addresses of certificate provider
  • names and addresses of 'people to notify'
  • You will not be asked for the name of witnesses, you can fill those in on the printed form when they sign.

Lasting power of attorney forms

https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney

LPA for financial decisions: make and register (complete pack)

Why can’t I do all of this online?

For an LPA to be valid it needs to be signed and witnessed by all people mentioned on the LPA. The online tool makes it simpler to do the first part, the filling in of the form. You can take your time and can read extra help if you need it. A printed, signed LPA has to be registered with the Office of the Public Guardian before it can be used.

Get a reduction or exemption

You can apply for a reduction if you earn less than £12,000. You might also be able to apply for an exemption if you’re on certain benefits, such as Income Support.

Download and fill in the application form. The form has more information about eligibility.

Alternative options

Guidance for people wanting to manage a bank account for someone else

This guidance explains how a person can manage a bank or building society account on another person’s behalf. It describes the circumstances in which this is possible and how it can be done. It also sets out the documents you will need to show the bank or building society to be able to manage the account.

This guidance applies to England and Wales. A separate leaflet for Scotland is available on our website at www. bba.org.uk/publications/entry/banking-for-people-who- lack-capacity-to-make-decisions-scotland/leaflets/

It is important for the account holder to think about how any specific requirements or arrangements may affect the running of their account. For example, an account holder specifying that both of their children should authorise withdrawals from their account would work well for a simple savings account but would not work if transactions needed to be carried out by phone or online.

Banks and building societies will always need to check specific documents before they can let you manage another person’s account. They will need: - proof of your name and address; - evidence of your authority to act for the account holder; and - proof of the account holder’s name and address (if the bank or building society has not already had this). The documents you need to provide to prove your name and address include the following. - Proof of your name – your passport or driving licence. - Proof of your address – a recent gas, electricity, water, landline phone or council tax bill, a letter from the DWP or HM Revenue & Customs, or a letter from an appropriate person (for example, the matron of a care home). The bank or building society can give you full details of the documents they accept.

Managing someone else’s account

when they have mental capacity

A person has mental capacity if they have the ability to understand, remember and act upon appropriate information and so can reliably make decisions for themselves.

An account holder who has mental capacity can authorise someone else to have access to their account. This may be for convenience or because of the account holder’s long periods of travel or physical disabilities.

If you have the right to handle the account of someone who has mental capacity, you have a ‘third-party mandate’. A third-party mandate is not appropriate if the account holder is losing the ability to make relevant decisions themselves.

For more information about getting a third-party mandate to manage the account of someone who has mental capacity, you and the account holder should speak to the bank or building society.

Another way of banking on behalf of someone who has mental capacity is by having what is called an ordinary power of attorney. This enables you to make financial decisions on behalf of the account holder (known as the donor). However, an ordinary power of attorney stops being legal authority if the donor loses mental capacity. There is a standard form of words to grant an ordinary power of attorney. For more information, contact a solicitor or an experienced adviser (for example, a Citizens Advice Bureau). Some Enduring and Lasting Powers of Attorney (see the following page) can also be used when the account holder has mental capacity.

Consider opening a basic bank account

A fee-free basic bank account might be a good option if you’ve been turned down for a current account.

You can use a basic bank account to receive money and pay bills.

These accounts don’t have an overdraft facility, so you won’t be able to get into debt by spending more than you have.

Want to find out more about fee-free basic bank accounts? We’ve pulled together a collection of guides, tips and handy links to make sure you get the best deal.

Set up an ordinary power of attorney

A power of attorney is a legal arrangement that gives someone else the power to make decisions for you.

Some powers of attorney are designed to last indefinitely.

But you can set up an arrangement called an ‘ordinary power of attorney’.

This is designed to be used – often for a specific, short period or for a specific task when you’re able to make your own decisions but it’s convenient to ask someone else to take over.

An ordinary power of attorney can be useful if:

you’ll be away on holiday or in hospital for a time, or you’re able to make your own decisions but want someone else to be able to step in with support from time to time. An ordinary power of attorney can cover:

all your financial affairs – called a ‘general power’, or just some areas that you specify, like dealing with the tax office or selling a house.

You can cancel the arrangement at any time. An ordinary power of attorney is automatically invalid if you lose the ability to make your own decisions.

If you want a power of attorney that will continue even if you lose the ability to make your own decisions, you’ll need to make a lasting power of attorney (called a continuing power of attorney in Scotland and an enduring power of attorney in Northern Ireland).

To set up an ordinary power of attorney, you can contact a solicitor.

But before you spend any money, check that your bank and any other providers will recognise the power and accept your attorney’s instructions.

ist Check and agree

Read the document to make sure it meets your needs. Make sure that your appointed donee(s), or attorney(s), have agreed and are ready and available to act as your donee(s) for the appointed time. Remember that if you have any questions you can easily ask a lawyer. Sign to Make It Legal

The power of attorney is a special type of contract called a "deed". This means it must be signed in a special way.

Paperwork

Print out the power of attorney. You cannot sign online.

You must sign the power of attorney in the presence of one or two witnesses. If there are spaces in your document for two witnesses to sign, you must sign in the presence of two witnesses.

Each witness must be independent, have mental capacity and should:

not be a family member, and

not be under the age of 18.

The witness or witnesses must sign and add their name, address and occupation directly underneath your signature.

Complete the power of attorney by writing the date in the space provided at the top of the document.

Store

You must keep the original of the power of attorney in a safe place.

Make a copy for yourself.

Each donee should also receive their own copy of the power of attorney.

If you want to keep the original safe and use a copy, it is a good idea to certify any copies. This means that a copy is confirmed by a qualified person - usually a solicitor - as a true copy of the original document. Certification can be provided by most solicitors for a small fee. If you'd like your power of attorney certified, ask a lawyer.

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People you must have to make an LPA

  • Donor: see part A1 of this guide.
  • Attorneys: see part A2 of this guide.
  • Certificate provider: see part A10 of this guide.
  • Witnesses: an impartial person must witness you and your attorneys signing your LPA. You can’t witness your attorneys’ signatures and they can’t witness yours.

Registering your LPA

Before you can use your LPA, you must register it with the Office of the Public Guardian (OPG). It costs £82 to register your LPA so that it’s ready to use. It’s best to apply to register your LPA as soon as you’ve filled in the form.

Making decisions for you

Attorneys can make some decisions on your behalf, but they can’t do as they please. They always have to act in your best interests. The Mental Capacity Act Code of Practice goes into this much more fully. It sets out five basic principles an attorney has to follow when working out whether and how to act on your behalf: 1. Your attorneys must assume that you can make yourown decisions unless it is established that you cannot do so. 2. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps. 3. Your attorneys must not treat youas unable to make a decision simply because you make an unwise decision. 4. Your attorneys must act and make decisions in your best interests when you are unable to make a decision. 5. Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedoms but still achieves the purpose.

Attorneys always have to follow these principles.

Limitations

If you’re bankrupt or subject to a debt relief order, you can make, sign and register an LPA for financial decisions. However, your attorneys will not have power over all of your property.

If this applies to you, you should think about getting legal advice before you make your LPA.

If you become bankrupt or subject to a debt relief order after your financial LPA is made or registered, it will be cancelled.

If an attorney becomes bankrupt or subject to a debt relief order, they can no longer be your attorney under your LPA for financial decisions.

Property and financial affairs LPA attorneys

Some people choose a professional attorney, such as a solicitor, for their financial LPA.

If you appoint a professional attorney for a property and financial affairs LPA, such as a solicitor, you must name an individual. You can’t just give a job title or the name of a firm.

Professional attorneys usually charge fees. Ask what fees they will charge you. You must add instructions in section 7 about what you’ve agreed to pay them. (See part A7 of this guide.)

An undischarged bankrupt or a person subject to a debt relief order can’t be an attorney for a property and financial affairs LPA.

What attorneys can do

Your attorneys can only make decisions that you’ve allowed them to make in your LPA.

For example, if your LPA is for your financial decisions, your attorneys can’t make decisions about your care or daily routine.

If your LPA is for your health and care, they can’t make decisions about your money.

When attorneys can no longer act An attorney can’t act for you if they: - lose mental capacity - decide they no longer want to act as your attorney (known as ‘disclaiming their appointment’) - become bankrupt or subject to a debt relief order and were an attorney for a financial LPA - were your wife, husband or civil partner but your relationship has legally ended – unless you write instructions in section 7 of the LPA form that they can continue to be your attorney if your relationship legally ends

Sometimes, if an attorney dies or has to stop acting for one of the reasons above, it can cause serious problems: - if you appointed only one attorney, your LPA would stop working altogether - if you’ve said your attorneys have to act ‘jointly’ for some or all decisions (see part A3 of this guide) then they won’t be able to make those decisions

If either of these apply to you, consider appointing replacement attorneys to protect your LPA. Read more about replacement attorneys in part A4 of this guide.

If you cancel your LPA, your attorneys can no longer act on your behalf.

Professional attorneys

Professional attorneys, such as solicitors or accounts, charge for their services. They may also claim fees and reasonable expenses.Write what you’ve agreed to pay in section 7 instructions or set their fee by referring to standard rates and writing something like:

“I wish my professional attorneys to be paid the standard solicitor rate as set by [state the name of a relevan professional organisation here].”

Fees and expenses are paid out of your funds.

Non-professional attorneys

Many attorneys don’t get fees. For example, if you appoint a non-professional attorney – such as your husband, wife, partner, a family member or a friend – they’ll probably be happy to act for you without being paid.

However, they can still claim reasonable expenses, such as postage, travel costs and the cost of an accountant preparing annual accounts.

If you don’t want to pay your attorneys fees, don’t write anything. They can still claim expenses.

If you agree to pay a fee, you must write this in your instructions. If you don’t, your attorney can’t be paid. You can set different fees for different attorneys.

For non-professional attorneys, fees are often set as a payment each year.Here are examples of the sort of instructions you might write to pay a fee to your attorneys:

“Each attorney must be paid a single fee of £1,000 each year, the payment to be made on 20 December each year. The fees will stop when my estate drops to £[fill in amount].”

“I wish each of my attorneys to be paid £[fill in the amount] per year for their services under this LPA. My attorneys will stop being paid when my money drops to £[fill in amount].”

Fees and expenses will be paid out of your funds.

Your witness can’t be:

  • under 18
  • one of your attorneys
  • one of your replacement attorneys
  • an employee of a trust corporation that is your attorney or replacement attorney (financial LPA only)

Signatures

The donor must sign your LPA before anyone else does.

The certificate provider must sign after the donor but before the attorneys.

Attorneys and replacement attorneys must sign after the certificate provider. And witnessed.

You must register

The LPA can’t be used until it’s registered by the Office of the Public Guardian (OPG).

Only the donor or one of the attorneys can apply to register it.

An attorney can apply to register the LPA on their own if they are: - the only attorney - appointed ‘jointly and severally’ - appointed ‘jointly for some decisions, jointly and severally for other decisions’ – unless the donor has stated in the LPA document that all the attorneys must apply together

Cancelling your LPA

You (the donor) can cancel your LPA at any time, as long as you have mental capacity. It doesn’t matter if the LPA is registered. If it’s registered, you must write a ‘deed of revocation’ to cancel it. This is an example of a deed of revocation that you can use: This deed of revocation is made by [donor’s name] of [donor’s address]. 1. I granted a lasting power of attorney for financial decisions/health and care decisions [delete as appropriate] on [date you signed the LPA] appointing [name of first attorney] of [address of first attorney] and [name of second attorney] of [address of second attorney] to act as my attorney(s). 2. I revoke the lasting power of attorney and the authority granted by it. Signed and delivered as a deed [donor’s signature] Date signed [date] Witnessed by [signature of witness] Full name of witness [name of witness] Address of witness [address of witness] You must sign and date the deed while watched by a witness, who must also sign and date it. Your witness doesn’t have to be the same one you used for your original LPA. You must then send the deed to the Office of the Public Guardian (OPG) with the original, registered LPA document. You must also tell all your attorneys that you’re cancelling your LPA. You can find out more at www.gov.uk/power-of-attorney/end If you don’t have access to the internet at home, your local library can help you.

Your personal information

This information charter sets out the standards that you can expect when we ask for, use or share your personal information. It tells you how to get access to the information we hold on you. OPG is an executive agency of the Ministry of Justice. The ministry is the ‘data controller’ under the Data Protection Act 1998 and is responsible for the personal information that we hold. We use your information to help us carry out the duties of the Public Guardian, under the Mental Capacity Act 2005. We collect your personal information when you: • apply to register a lasting power of attorney using the LPA digital service at www.gov.uk/power-of-attorney or by post • pay a fee using a credit card, debit card or by direct debit • agree to take part in our customer research • contact us with a question • make a complaint We will use your personal information to: • register your power of attorney • process your fee payment • keep a register of powers of attorney • carry out customer research • carry out administration We promise to: • ask only for the information we need • make sure that your information is safe and no one unauthorised can get it • make sure that we do not keep your information any longer than we have to • give you the chance to ask us to change your information if you believe it is wrong In return, we ask you to: • make sure that the information you give us is accurate • tell us about any relevant changes to your personal situation (such as a change of name, title or address) as soon as possible Sharing personal information We will only share your information when the law says we can. This includes sharing information to protect vulnerable people. We may share your contact information with organisations carrying out customer research on our behalf. They must make sure any information we give them is safe and not use it for any other purpose. Access to personal information Under the Data Protection Act 1998, you can ask for a copy of the information we hold about you. (This is called a ‘subject access request’.) Write to us at: Data Access & Compliance Unit, Information Directorate, Ministry of Justice, Post point 10.34, 102 Petty France, London SW1H 9AJ. You’ll need to include: • £10 cheque payable to HM Paymaster General • two forms of identification, eg: a photocopy of your passport or driving licence or an original electricity, gas, council tax or other bill in your name from the last six months If you have any questions or think that we might hold incorrect information about you, email us at [email protected]

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