To be valid a Lasting Power of Attorney (LPA) must be by Deed and in a prescribed format. This includes:-
1. Statements by the donor of the LPA:-(a) That they have read (or have had read to them) the prescribed information set out on the form – which sets out the effect of granting an LPA.(b) That he intends the Attorney (s) to have the power to take decisions on his behalf when he is no longer capable of doing so.(c) Naming the individuals whom he wishes to be notified (maximum five) of any application to register the power – or specifying that no one should be notified. The idea underlying this is to build in a level of protection for the donor. If notice must be served upon other relatives/friends of the donor it reduces the risk that a rogue attorney may surreptitiously abuse the trust placed in them.
2. Statements by the Attorney:-(a) That they have read (or have had read to them) the prescribed information.(b) That they understand the Attorney’s duties and that they must act at all times in the donor’s best interests.
3. Statement by a “certificate provider” that:-(a) The donor understands the purpose of a LPA and the scope of the authority that it grants.(b) That no fraud or undue pressure was used to induce the donor to grant the LPA.(c) That there is no legal impediment to prevent an LPA being granted.
Only certain categories of individuals are eligible to act as a certificate provider:-
(1) An individual who has know the donor personally for at least two years before the certificate is signed or(2) A “skills” qualified individual – which includes solicitors and doctors.
Certain categories of individuals are not eligible to act as a certificate provider:-
- A member of the donor’s family.
- A business partner or employee of the donor.
- The Attorney themselves – or their business partner, employee or a member of their family.
- The owner, director or employee of a care home in which the donor lives.
Detailed procedures are laid down as to how an LPA must be executed. We recommend that professional advice is taken to ensure that the validity of your LPA is above reproach.
Once executed consideration should be given to the registration of the LPA.
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