Granting a Lasting Power of Attorney (LPA) is an essential step in ensuring your affairs are managed if you lose mental capacity or simply require assistance. An LPA grants someone, referred to as your attorney, the legal authority to make decisions about your finances or personal welfare, depending on the type of LPA you have created. However, circumstances can change, and there might come a time when you wish to revoke or update your LPA.
Whether you are dissatisfied with your current attorney, improvements in your health negate the need for assistance, or personal changes require updating the document, it’s critical to understand the steps to revoke or amend your LPA properly. This article provides a comprehensive guide on how you can go about revoking or updating your Lasting Power of Attorney and what important considerations you should keep in mind during the process.
A Lasting Power of Attorney serves a vital role in safeguarding your financial decisions and personal welfare if you become unable to act on your own behalf. There are two distinct types of LPAs:
– Property and Financial Affairs LPA: This gives your attorney authority over financial matters, such as managing bank accounts, paying bills, and making property-related decisions.
– Health and Welfare LPA: This grants your attorney power over decisions concerning your personal care, including medical treatments, personal care arrangements, and living accommodations if you lose mental capacity.
Both types of LPA require careful consideration regarding who should act as your attorney. It’s essential that the person appointed is trustworthy, competent, and aligned with your values. Should things change, you have the right to revoke or make alterations.
You might wish to revoke or amend an LPA for several reasons, including:
– Breakdown in relationship: You may have appointed a close friend or family member who, over time, you no longer feel is suited to the role. A falling out or change in confidence could lead to your decision to revoke their appointment.
– Attorney is no longer able or willing: Your attorney might lose the ability to fulfil their duties due to illness, distance, or lack of availability. Sometimes, they may express a wish to resign if they feel they cannot manage the responsibilities attached to being your attorney.
– Changing life circumstances: Your own situation may change—perhaps you have moved to a different country or your personal circumstances have evolved to the point where the original LPA no longer serves your current needs.
– Health recovery: In some instances, people recover from the condition that originally led them to set up an LPA. You may no longer need an attorney to manage either your health or financial affairs.
– Desire to appoint a new attorney: You might consider replacing your original attorney with someone who is better suited to your requirements or whose circumstances are more compatible with your needs.
– Errors or outdated information: In some cases, the LPA may contain outdated information, or perhaps you realise you’ve made an error regarding the terms of the LPA or who it appoints. This could prompt a revision or withdrawal of the LPA.
If you decide that you no longer want your LPA to be in effect, you have the option to revoke it. However, the process to revoke an LPA must be handled carefully, as failure to follow the correct procedure can lead to complications. Below is a step-by-step guide detailing the revocation process:
1. Ensure Legal Capacity
Before taking steps to revoke an LPA, you must ensure that you have the mental capacity to do so. Legal capacity means you fully understand the implications of your decision to revoke the LPA and the consequences that follow. If you no longer possess the mental capacity to take this step, you would not be able to revoke the LPA. In such a situation, only the Court of Protection could revoke the LPA on your behalf.
2. Complete a Deed of Revocation
To formally revoke your LPA, you will need to create and sign a document known as a “Deed of Revocation.” This is a straightforward legal document confirming that your Lasting Power of Attorney is no longer valid. The deed acts as evidence of your decision and ensures the revocation is recorded officially.
The Deed of Revocation must include:
– Your full name and address
– A statement declaring the revocation of your LPA
– Identification of the LPA being revoked (you must specify whether it’s a Property and Financial Affairs LPA or a Health and Welfare LPA or both)
– A specific date on which the revocation is to take effect
3. Inform Your Attorney(s)
Once the Deed of Revocation has been created, you need to provide a copy to your attorney or attorneys. Notifying them in writing is crucial so that they are aware they no longer hold any legal authority over your affairs. Failure to notify your attorney means they may continue to act under the assumption that the LPA is still valid, which could lead to legal complications.
4. Notify the Office of the Public Guardian (OPG)
The Office of the Public Guardian (OPG) must be informed when you revoke an LPA. You will need to send them:
– A copy of the Deed of Revocation.
– Possibly, the original LPA document if you have it in your possession.
The OPG holds a record of registered Lasting Powers of Attorney, so informing them ensures that nobody can refer to your revoked LPA as still being in effect. The OPG will confirm once they have updated the public record and officially recognised your revocation.
5. Ensure Safeguards Are in Place
Once the LPA is revoked, it’s essential to carefully consider whether any additional arrangements need to be put in place. For example, if circumstances later require you to appoint a new attorney, you should consider setting up a new LPA. Similarly, if the revoked LPA concerned your finances and you’re currently managing your own affairs again, it could be beneficial to review your financial planning methods to ensure everything remains in good order.
In some cases, revocation isn’t necessary, and you’re simply looking to modify the LPA. However, under British law, you **cannot** simply amend an existing Lasting Power of Attorney by adding new clauses or crossing out and revising details. To update an LPA, a new document must be created. Here’s how to go about it:
1. Review the Existing LPA
Before creating a new LPA, carefully review your existing document to identify what changes you want to make. Are you unsatisfied with your current attorney? Do you need to add an additional attorney or remove someone as a joint attorney? Or are there specific conditions or instructions that you want to revise?
It’s vital to ascertain these changes thoroughly since the creation of a new LPA does require starting the process from scratch.
2. Create a New Lasting Power of Attorney
In practice, ‘updating’ your LPA actually means creating a new one. The new LPA must follow the same steps as the original LPA:
– Choose your attorney(s).
– Specify the type of LPA (finance or welfare).
– Complete the LPA form, providing clear instructions for your attorney(s).
– Have the LPA signed by both yourself and the appropriate parties, including a ‘certificate provider’ who verifies your mental capacity.
– Pay any required registration fees.
Once the new LPA is complete, it must be registered with the Office of the Public Guardian before it becomes legally effective.
3. Address Multiple Attorneys and Replacement Attorneys
As you create your new LPA, it’s important to consider whether to appoint replacement attorneys. These are people who would step in if your first-choice attorney became unable or unwilling to continue. It’s wise to think long-term when appointing attorneys so as to minimise the need for future updates.
4. Register the New LPA with the OPG
After completing and signing the new document, the next step is registration with the Office of the Public Guardian. This can take several weeks, so plan accordingly. During the registration process, you may still rely on your original LPA until the new version officially takes effect. Once the new LPA is registered, it supersedes the old one.
5. Inform Relevant Parties
Once the new LPA has been finalised and registered, don’t forget to inform the relevant individuals and parties of the changes. This means notifying your previous attorneys that their role has been terminated, informing your new attorneys that they have been appointed, and updating financial institutions, healthcare providers, and other parties so that they are aware of who is authorised to act on your behalf.
1. Mental Capacity and Timing
Remember, the ability to revoke or create an LPA is contingent upon your mental capacity. Planning ahead is crucial; it is generally advisable to make decisions around your LPA well before you might need someone to act on your behalf.
2. Court of Protection
If there is any doubt about someone’s mental capacity or if an individual with an LPA can no longer make decisions for themselves, the Court of Protection may need to become involved. Family members may apply to the Court for the LPA to be revoked if they believe the attorney has acted improperly or if the attorney is no longer able to act.
3. Replacement Attorneys
Always consider appointing replacement attorneys in your LPA so they can step in if your primary attorney can no longer fulfil their role. This can save time and potential legal complications down the road, providing a smoother transition in case your original attorney becomes unavailable.
4. Keeping Records and Staying Organised
When revoking or updating an LPA, keep clear records of all actions taken, including copies of the Deed of Revocation, the registration of the new LPA, and communication with the OPG and attorneys. Staying organised can help avoid disputes or confusion in the future and ensures that your wishes are respected.
5. Seeking Legal Advice
Although it’s possible to handle these processes on your own, consulting a legal professional or advisor who specialises in elder law or estate planning can provide peace of mind. They can help ensure that all documents are completed accurately and in compliance with the law, especially if your LPA involves complex or substantial assets.
In Summary
Your Lasting Power of Attorney is a powerful tool for safeguarding your affairs, but it should remain adaptable to changes in your life. Understanding the steps for revocation and the creation of a new LPA ensures you retain control over who acts on your behalf and how. By following these guidelines and taking proactive steps, you can ensure that your LPA remains a true reflection of your current wishes, providing you and your loved ones with security and peace of mind.
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