LASTING POWERS OF ATTORNEYPlan for the worst, hope for the best

Why should I make a Lasting Power of Attorney?

Two in every three people will lose their mental capacity at some point. For many, this is the result of an illness such as a stroke, a coma, Alzheimer’s or dementia. Capacity can be lost through an accident too.

If you were to lose your mental capacity, and you do not have a valid Lasting Power of Attorney in place, things can become very difficult. In such circumstances, your loved ones would have to apply to become your “Deputy” through the Court of Protection. Deputyship can be a time consuming and costly court process; often entering into thousands of pounds.  Also, whilst a deputyship application is pending, the court will freeze all of your accounts and assets (including joint assets). In many cases, these assets can be frozen for several months.

In order to avoid the complications, costs and time involved with deputyship, clients are advised to make their Lasting Powers of Attorney whilst they still have their mental capacity. Lasting Powers of Attorney are legal documents in which you, the “Donor” appoint “Attorneys” (often friends and/or family members) to make decisions on your behalf if you are ill or lose capacity. As you are giving the authority to your attorneys to act, the courts do not need to be involved.

What are the benefits?

KEEP CONTROL

Without a Lasting Power of Attorney, it is the courts that will ultimately decide who may or may not deal with your financial affairs. Equally, with medical matters, it will be the doctors who have the final say regarding any treatment that you may require.

By having a Lasting Power of Attorney, you can plan and specify in advance the decisions you want others to make on your behalf.

REDUCE COSTS

Where there are no Lasting Powers of Attorney in place, your loved ones will have to apply for “Deputyship”. This process can be very time-consuming and costly. There are not only application fees to pay, but ongoing fees too. These costs can often run into thousands of pounds.

PROTECT YOUR FAMILY

People often put Lasting Powers of Attorney in place to protect their families from the stress and delays involved in dealing with the courts. It also helps your loved ones to deal with your affairs quicker, and avoid problems with accessing your finances.

SIMPLIFY ADMINISTRATION

Attorneys appointed under a Lasting Power of Attorney have fewer administrative responsibilities than a Deputy appointed through the Court of Protection. Also, supervision is much more simple.

AVOID FROZEN ACCOUNTS

If someone loses their mental capacity, many of their assets including bank and building society accounts will be frozen. This will include any joint accounts and can lead to very serious financial issues. If you have a Lasting Power of Attorney in place, this can be avoided.

PHYSICAL INCAPACITY

In the future, you may no longer be as active and may find it more difficult to carry out certain tasks such as going into the bank, paying bills or speaking on the telephone. By making a Lasting Power of Attorney, you can specify who you would like to act on your behalf in such circumstances.

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Frequently Asked Questions

Can everybody make a Lasting Power of Attorney?

Anyone who is over the age of 18, and has their mental capacity is capable of making a Lasting Power of Attorney. Where the Donor (the person making a LPA) has an illness such as dementia, it may still be possible for them to make a valid LPA providing they have enough capacity to understand and comprehend the purpose of making one.

What is a loss of mental capacity?

According to Section 2 (1) of the Mental Capacity Act 2005, a person lacks capacity in relation to a matter if at the time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain.

It does not matter whether the impairment or disturbance is permanent or temporary. A person may lack capacity on a particular day, at a particular time, but be perfectly capable of making decisions the next day. This is especially true where medications are involved that may help, or exacerbate a person’s state of mind.

Common conditions that can affect a person’s capacity include: stroke, coma, concussion, mental health problems, neuro-disability/brain injury, Altzeimer’s and other forms of dementia. Someone can also lose mental capacity because of an injury, such as a car accident.

Who can be Attorneys?

An attorney must be someone who is 18 years of age or over, who has their mental capacity and must not be bankrupt or subject to a debt relief order.

Clients will typically name their spouse or partner, children and other close family as their attorneys. Also, in some cases, professional attorneys may be named such as solicitors or accountants for example.

What are the duties and responsibilities of an Attorney?

Fundamentally, attorneys must act in your best interests whilst dealing with the things that you would normally have dealt with yourself had you not lost capacity. The Mental Capacity Act 2005 imposes specific responsibilities on attorneys to:

  • act in accordance with the Act’s principles;
  • have regard to the guidance in the Code of Practice;
  • act only within the scope of the authority given;
  • carry out instructions as required by the LPA;
  • to keep records of decisions and transactions made;
  • not delegate powers unless authorised to do so.

The role of an attorney is hugely important. A great deal of care and consideration should be taken when deciding who to appoint in this role.

When can Attorneys act?

You can allow your attorneys to make decisions, even if you have your mental capacity. However, your attorneys can only act with your consent under these circumstances. If you later lose the ability to make informed decisions due to disturbance or impairment of your mind, whether temporary or permanent, then your attorneys can continue to act on your behalf.

How many Attorneys can I appoint?

Generally, clients appoint between one and four attorneys; although it is possible to appoint more than four where necessary. It is also possible to appoint “Replacement Attorneys”. These would be a second choice, and can only act if the first named attorneys cannot act (for example, if they have lost capacity or passed away).

Do Attorneys have to act jointly?

Attorneys can act in one of three ways:

  1. Jointly and Severally – this is the most common and practical option. Attorneys can choose when they make decisions jointly, but they can also make decisions independently.
  2. Jointly – this is less practical as attorneys must agree unanimously on every decision made, which can make simple things time consuming. Also, if a decision cannot be made by all attorneys, the only remedy is to apply to court for consent. Furthermore, if one attorney dies or can not longer act on your behalf, the LPA effectively stops working.
  3. Jointly for some decisions, and severally for others.
What types of decisions can be made using a Lasting Power of Attorney?

There are actually two types of Lasting Powers of Attorney; one for Property and Financial Decisions, and another for Health and Welfare Decisions. Below are a few examples of the types of decisions that attorneys can make:

Property and Financial Affairs:

  • Buy and sell land, property and other assets including the family home;
  • Maintain and manage land, buildings and businesses;
  • Open, close and operate bank, building society and other accounts;
  • Claim benefits, pensions, insurances and allowances;
  • Deal with utility companies and other service providers;
  • Invest and manage savings and other wealth.

Health and Welfare:

  • Make decisions about medical treatment and on-going care;
  • Give or refuse consent to life sustaining treatment;
  • Choose the most appropriate nursing or residential care home for the donor.
What is a "Certificate Provider"?

This is someone who signs to confirm that they have discussed with the purpose of a Lasting Power of Attorney with the donor, and confirmed they have a full understanding of what they are doing by passing autonomy to their attorneys. It is used to prevent any adverse inferences, such as being forced into applying for LPAs.

When do I register my Lasting Power of Attorney?

Your Lasting Power of Attorney can be registered at any time, either by yourself or by your Attorneys. Ideally, it should be registered before you lose capacity in case there are any difficulties so that they can be sorted out whilst you remain capable.

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves. They are responsible for overseeing Attorneys appointed under LPAs.

They can take action where there are concerns about an attorney, registering LPAs, maintaining the public register of people who have been given LPAs, and looking into reports of abuse against registered attorneys.

A SINGLE LASTING POWER OF ATTORNEY
£349
Either Property and Financial OR Health and Welfare for a single person.
MIRROR LASTING POWERS OF ATTORNEY FOR A COUPLE
£449
One type of Lasting Power of Attorney (either Property and Financial OR Health and Welfare) for a couple.

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