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Lasting Power of Attorney – Preparing for the Future

Posted on May 21st 2019

probate and the administration of estates

It’s not easy to think about a time when you may be unable to make your own decisions, but it can help to be prepared.The situation may arise temporarily, for example, if you are in hospital and need help with everyday tasks such as paying bills. Or you may need to make longer-term plans to protect you, for example, if you suffer a head injury, stroke or are diagnosed with dementia. This article discusses the importance of setting up a Lasting Power of Attorney  – plans you can put in place now that can come into play in the event you are unable to manage your own affairs in the future.

Lasting Power of Attorney

It is a common misconception that family members have an automatic right to make decisions on your behalf if you have lost the capacity to do so yourself. A Lasting Power of Attorney (LPA) is a powerful legal document, that can be set up at any age, which allows anyone over the age of 18 (the ‘donor’) to appoint trusted friends or family members (the ‘attorneys’) to make decisions on their behalf in the event that they are unable to make decisions for themselves.

Types of LPA

There are two types of LPA:

  1. LPA for Property and Financial Affairs – this gives your attorneys authority to make decisions regarding the management of your money and assets. For example: paying bills, managing bank accounts or collecting benefits and pensions.
  2. LPA for Health and Welfare – this gives your attorneys authority to make decisions regarding your medical and personal welfare. For example: where you live, your day-to-day care or specific medical treatments.

Key difference

A key difference between the two types of LPAs is that you can choose whether you would like your finance and property attorneys to act as soon as your LPA is registered or only when you have lost mental capacity. Whereas your health and welfare attorneys only have authority to act when you no longer have mental capacity.

Allowing your attorneys to use your finance and property LPA before you have lost capacity can have advantages, for example if you are unable to leave the house due to injury or illness you may instruct your attorneys to act on your behalf during this period.

Formalities

An LPA must be made while the donor still has mental capacity and therefore should be considered by people of all ages.

Once the document is complete it must be registered with the Office of the Public Guardian (OPG) before your attorneys are able to act on your behalf. The registration process usually takes 10 – 12 weeks.

Your attorneys

You are able to appoint more than one attorney if you wish and you can also appoint replacement attorneys, who would only step in and act if your first choice attorneys were unable to act. For example if they lost capacity themselves, passed away before you or wanted to retire from their responsibilities.

Attorneys have your full authority to make decisions on your behalf, but they must always act in your best interest.

What if you change your mind?

LPAs can be revoked at any time by the donor provided that they still have the mental capacity to do so.

LPAs are automatically revoked if the donor has named their spouse or civil partner as one of their attorneys and are subsequently divorced or have their partnership dissolved. Finance and property LPAs are also revoked if either the donor or their attorney is made bankrupt.

What happens if you decided not to put a LPA in place?

If you were to lose capacity and not have an LPA in place then it can make it very difficult for your loved ones. A relative or a friend would need to make an application to the Court of Protection requesting that they appoint them as your deputy.
Making a deputy application takes around 6 months and can be very expensive. The Court will request to see additional supporting evidence as to why that person should be appointed. Your deputy will then be required to pay fees annually to the Court.

Anyone could apply to the Court to be your deputy and therefore it might not be the same person you would have chosen had you prepared a lasting power of attorney.

Our costs

Our charges for preparing both types of lasting powers of attorney are £495 plus VAT for an individual and £695 plus VAT for a couple.

There is also a Court fee of £82 per document payable to the Office of the Public Guardian.

Contact us

If you would like to discuss setting up an LPA or have any questions about the process, please get in touch with us. We would be delighted to help.

Call and speak to a lawyer on 01244 312306