Revoking or Amending a Lasting Power of Attorney: What You Need to Know

A Lasting Power of Attorney (LPA) is a crucial legal document in the UK that allows you to appoint one or more persons (known as attorneys) to help you make decisions or to make decisions on your behalf should you lose the capacity to do so yourself. However, situations change, relationships evolve, and there may come a time when you need to amend or revoke your LPA. Understanding how to do this properly is essential to ensure that your interests remain protected.

Introduction to Lasting Power of Attorney

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal tool that allows an individual (the donor) to appoint someone they trust (the attorney) to make decisions on their behalf. There are two types of LPAs:

1. Health and Welfare LPA: This allows the attorney to make decisions about the donor’s personal healthcare and welfare. These decisions can include where the donor lives, day-to-day care, and even medical treatments.
2. Property and Financial Affairs LPA: This permits the attorney to make decisions regarding the donor’s finances and property. This can include managing bank accounts, paying bills, and selling property.

Why is an LPA Important?

Creating an LPA ensures that your affairs will be handled by someone you trust if you become unable to make decisions for yourself. Without an LPA, your loved ones might face lengthy and costly legal proceedings to gain the authority to manage your affairs, during which time your needs may not be adequately met.

The Need to Amend or Revoke an LPA

Changing Circumstances

Over time, your personal circumstances may change. You might move to a different part of the country, your relationships with your appointed attorneys might change, or your appointed attorneys may no longer be able to act on your behalf due to health issues or other commitments. In such cases, it may be necessary to amend or revoke your existing LPA to reflect these changes.

Mistakes or Omissions

Mistakes can occur when creating an LPA. You might have included incorrect information, or there might be an omission that needs to be corrected. Ensuring that your LPA accurately reflects your wishes and the legal requirements is essential for its validity and effectiveness.

New Preferences

Your preferences and priorities can change over time. For instance, you might initially decide that a close friend should be your attorney, but later you may feel that a family member would be more appropriate. As your circumstances and relationships evolve, so too might your choice of attorney.

How to Amend an LPA

Creating a New LPA

One of the most straightforward ways to amend an LPA is to create a new one. Here’s the process:

1. Complete a New LPA Form: Obtain the appropriate LPA form (either for Health and Welfare or Property and Financial Affairs) from the Office of the Public Guardian (OPG) or their website.
2. Fill in the Form: Complete the form, ensuring all sections are filled out accurately. It is crucial to state that this new LPA revokes the previous one.
3. Sign and Witness: The new LPA must be signed by the donor and witnessed by someone who is not an attorney or replacement attorney. It must also be signed by a certificate provider, who confirms that the donor understands the LPA and is not under undue influence.
4. Register the LPA: Submit the completed form to the OPG for registration. The new LPA does not come into effect until it has been registered.

Making Amendments

If you need to make minor amendments to your LPA, such as updating contact details or changing instructions about your preferences:

1. Add a Codicil: For minor changes, you might add a codicil to the LPA. A codicil is an additional document that explains the changes.
2. Notify the OPG: Inform the OPG of the amendments. You may need to provide supporting documents and ensure that all amendments are clearly documented and legally witnessed.

Revoking an LPA

Voluntary Revocation

As a donor, you have the right to revoke your LPA at any time as long as you have the mental capacity to do so. The process involves:

1. Prepare a Deed of Revocation: A deed of revocation is a formal document stating that you wish to revoke your LPA. This document should include your name, the date, and a clear statement that you are revoking the LPA.
2. Sign the Deed of Revocation: The deed must be signed by you and witnessed by an independent witness.
3. Notify the OPG: Send a copy of the deed of revocation to the OPG and to all attorneys named in the LPA. This ensures that all parties are aware that the LPA is no longer valid.

Automatic Revocation

An LPA can be automatically revoked under certain conditions:

1. Marriage or Civil Partnership: If the donor marries or enters into a civil partnership, any LPA made before this event is automatically revoked unless it specifically states that it should remain valid.
2. Divorce or Dissolution: If the donor divorces or dissolves a civil partnership with an attorney, the LPA is revoked unless there are other attorneys appointed who can continue to act.
3. Death: The death of the donor automatically revokes the LPA. The death of an attorney can also revoke the LPA if no replacement attorneys are appointed.

Replacing an Attorney

Choosing a New Attorney

If you need to replace an attorney, perhaps due to their incapacity, death, or other reasons:

1. Identify a Suitable Replacement: Consider someone who is trustworthy, capable, and willing to take on the responsibilities.
2. Create a New LPA: Follow the steps to create a new LPA, naming the new attorney(s). Ensure to revoke the previous LPA formally.

Legal Considerations

When replacing an attorney, it’s essential to consider the following:

1. Capacity of the New Attorney: Ensure that the new attorney understands their role and responsibilities and is capable of acting in your best interests.
2. Compatibility: The new attorney should be someone you have a good relationship with and who understands your wishes and values.
3. Formal Documentation: Properly document the replacement through a new LPA form and ensure it is registered with the OPG.

Special Cases and Considerations

Partial Revocation

Sometimes, you may not need to revoke the entire LPA but only part of it. For instance, if you have multiple attorneys and wish to remove one:

1. Prepare a Deed of Partial Revocation: This document should clearly state which part of the LPA is being revoked.
2. Notify the OPG and Attorneys: Inform the OPG and all attorneys involved about the partial revocation to ensure clarity and legal compliance.

Court of Protection

In some cases, especially if there are disputes or concerns about the donor’s capacity, the Court of Protection may become involved. The court has the authority to:

1. Make Decisions: The court can make decisions on behalf of the donor if there are concerns about the donor’s mental capacity or if the LPA is being misused.
2. Appoint Deputies: If an LPA is not in place, the court can appoint deputies to make decisions on behalf of the donor.
3. Resolve Disputes: The court can resolve disputes between attorneys or between attorneys and the donor.

Practical Steps for Donors and Attorneys

For Donors

If you are considering revoking or amending your LPA, here are some practical steps to follow:

1. Seek Legal Advice: Consult with a solicitor to understand the legal implications and ensure that all procedures are followed correctly.
2. Communicate Clearly: Keep all involved parties informed of your decisions to prevent misunderstandings and ensure a smooth transition.
3. Keep Records: Maintain detailed records of all amendments, revocations, and communications related to your LPA.

For Attorneys

As an attorney, understanding your duties and the potential need for amendments or revocations is crucial:

1. Stay Informed: Keep up-to-date with the donor’s wishes and any changes in their circumstances.
2. Act in Best Interests: Always act in the donor’s best interests and consult with them as much as possible.
3. Document Actions: Record all decisions and actions taken on behalf of the donor, especially when changes to the LPA are involved.

Case Studies and Examples

Case Study 1: Revoking Due to Relationship Breakdown

Consider Jane, who appointed her then-husband as her attorney under both types of LPA. After their divorce, Jane decided to revoke the LPA. She followed the steps to prepare a deed of revocation, informed the OPG, and created a new LPA naming her sister as her attorney. Jane’s timely action ensured that her affairs were managed by someone she trusted and who was still closely involved in her life.

Case Study 2: Amending Due to Changing Health Needs

John created a Health and Welfare LPA naming his son and daughter as his attorneys. Over time, John’s health deteriorated, and he wanted his attorneys to have the authority to make specific medical decisions that were not initially included in the LPA. John added a codicil to his LPA, clearly outlining these new instructions, and registered the amendment with the OPG. This proactive step ensured that John’s evolving health needs were met.

Common Mistakes and How to Avoid Them

1. Not Registering the New LPA: A new LPA must be registered with the OPG to be valid. Failing to register it can leave you without the necessary legal protections.
2. Inadequate Communication: Failing to inform all relevant parties about changes to the LPA can cause confusion and disputes. Ensure that all attorneys and the OPG are promptly notified of any amendments or revocations.
3. Ignoring Legal Advice: Not seeking legal advice can lead to mistakes that invalidate the LPA. Always consult with a solicitor to ensure compliance with legal requirements.

Conclusion

Revoking or amending a Lasting Power of Attorney is a significant decision that requires careful consideration and adherence to legal procedures. Whether due to changing circumstances, new preferences, or errors in the original document, understanding how to properly amend or revoke your LPA ensures that your wishes are respected and your interests protected.

By following the steps outlined in this guide and seeking appropriate legal advice, you can navigate the complexities of LPAs with confidence. This proactive approach will give you peace of mind, knowing that your affairs are in the hands of trusted individuals who can act in your best interests, even if you are unable to do so yourself.

Creating and maintaining an LPA is a powerful way to safeguard your future, and being informed about how to amend or revoke it ensures that this important document continues to serve you well throughout your life.