Lasting Powers of Attorney anywhere in England and Wales online, by telephone or by skype.
Why do I need a Lasting Power of Attorney ('LPA')?
Your LPA allows you to appoint someone that you trust to manage your assets (such as cash and property), or make decisions about your healthcare, should you become mentally incapable of making decisions yourself. Your LPA is just as important as your will. If you do not make an LPA, and subsequently lose capacity, the Court of Protection can appoint someone to manage your affairs (such as a solicitor or even Social Services), who can then charge an hourly rate for the time spent in managing your money and selling your property until you die. The cost of this often runs into thousands of pounds per year.
What is a Lasting power of Attorney ('LPA')?
Your LPA is a legal document that enables you (the 'Donor') to appoint a person that you trust to help you to make decisions, or to make decisions on your behalf if you are incapable of doing so (the 'Attorney'). This gives you more control over what happens to you should you have an accident or illness and can't make decisions because you lack mental capacity. There are two types of LPA; one for Property and Financial Affairs, and one for Health and Welfare.
What is a Lasting Power of Attorney for Finances and Affairs?
The LPA for Finances and Affairs enables you to appoint attorneys to assist you with the running of your property and organisation of your financial affairs. This includes writing cheques and paying bills, selling or renting out your property and carrying out your trade or business.
Your attorneys may act on your behalf whilst you still have mental capacity (for example, if you are physically unwell and unable to leave the house). Alternatively, you may restrict the use of the power, so your attorneys cannot act unless you become mentally incapable of managing your affairs. This option is more restrictive.
What is a Lasting Power of Attorney for Health and Welfare?
Your LPA for Health and Welfare enables you to appoint attorneys to make decisions about your health and care, only when you lack the mental capacity to make such decisions. You may authorise your Attorneys to make decisions about your 'life sustaining treatment'. This includes the ability to consent to turning off or keeping you on a life support machine for as long as possible, depending upon your wishes. You may also add guidance to assist your attorneys. They would have the power to make decisions about your daily routine i.e. washing, dressing, eating, your medical care and moving into a care home.
What is the procedure for making a Lasting Power of Attorney?
We will discuss the content of the LPA with you in detail. Once you have chosen your attorneys, we will prepare a draft LPA and send this to you for your approval. Once approved, we will send the final version to you for your signature. You must sign the LPA in the presence of an independent witness. A 'Certificate Provider' is also required to sign the LPA as soon as possible after you, to confirm that you understand the document. Your attorneys are then required to sign in the presence of an independent witness. The LPA is then sent to the Office of the Public Guardian for registration. Once registered, the LPA is stored until such time as it is required.
Who should I choose to be my Attorneys?
Your attorneys should be people that you trust, who are over the age of 18 and of full mental capacity. They should not be bankrupt or at the risk of becoming bankrupt. You may appoint up to four Attorneys initially. You may also appoint replacement Attorneys. They will step in to replace the initial attorneys, should they be unable to act. Generally, relatives and/or friends are chosen to be Attorneys.
Do my Attorneys have to act together?
If you appoint more than one attorney, you can appoint your attorneys to act 'jointly' or 'jointly and severally'. It is common to appoint attorneys 'jointly and severally'. This is generally to avoid complications should one of the attorneys be unable to act i.e. if one of your attorneys dies and you have appointed your attorneys 'jointly' the LPA will then be invalid. Appointing attorneys 'jointly and severally' ensures your attorneys do not have to act unanimously when making decisions.
Is it essential to register my Lasting Power of Attorney with the OPG?
In a word, Yes! Once everyone has signed the LPA, it must be sent to the Office of the Public Guardian ('OPG') for registration before it can be used. Registration may take up to 8 weeks and a fee of £82 is charged by the OPG. Once the LPA has been registered, it will be 'validated' by a stamp on each page. The LPA for finances and affairs can then be used immediately (if you have elected so your LPA). The LPA for Health and Welfare can only be used by your attorneys when you lack the mental capacity to make decisions yourself. If your LPA's are not to be used immediately, they should be stored safely.
I have an Enduring Power of Attorney ('EPA'), is this still valid?
As long as your EPA was signed and witnessed before 1st October 2007, it should still be valid. An EPA should be registered at the Office of the Public Guardian if the donor (i.e. the person who made the EPA) becomes mentally incapable of managing their affairs. Please note that EPA's cover finances only, and your attorney would not have any power to assist with your health and welfare decisions. A separate LPA for health and welfare would be required for this.
What if my Attorneys misuse the Power of Attorney?
The Office of the Public Guardian ('OPG') is a Government body that has the ability to investigate the use of a power of attorney. If an attorney does not act appropriately, the OPG can ask the Attorney to produce bank statements and account for their actions. The OPG also has the power to remove an Attorney if they have misused the power.
For this reason, you must choose an attorney that you consider to be trustworthy. If you choose to appoint more than one attorney, they must also act unanimously. Therefore, careful thought should be given when appointing attorneys, to avoid any future complications.
Can my Attorneys make gifts on my behalf?
The attorney is allowed to make gifts on customary occasions (i.e. a birthday, marriage or civil partnership, or any other instance where presents are commonly given within families or to friends), to those related to or connected with you, and to any charity to which gifts had or might have been expected.
The value of each gift must be reasonable in the circumstances.
Can I revoke my Power of Attorney?
Yes, you can revoke your power of attorney, as long as you have capacity to do so. There is a procedure to follow, which we can assist you with.
What if I don't make a Power of Attorney?
If you don't make a power of attorney, and you become incapable of managing your affairs, the Court of Protection can appoint someone, such as a relative, or a solicitor, to act on your behalf.
What is a Deputyship Order in the Court of Protection?
A relative or friend may apply to the court to be appointed to act as your deputy by the court if you do not have an LPA in place. However, the process is long winded and very expensive (fees often run into the thousands). This often adds unnecessary stress to friends and relatives, which would have been avoided if a power of attorney was in place.
Quite often, the court will appoint someone to manage your affairs if you are mentally incapable of doing so. Without an LPA you would not have any say in this, and the person appointed may not be the person that you would have chosen. For example, they could be a solicitor, or a representative of the Local Authority (social services). A professional would generally charge an hourly fee (of at least £90+vat per hour) for managing your affairs.
For more information about Deputyship Orders click here.
Make a start - Contact us to discuss your Lasting Power of Attorney in detail.
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