What is a Lasting Power of Attorney?
A Lasting Power of Attorney, (LPA), is a legal document which enables you to appoint people (your attorneys) to assist you with your affairs and finances.
There are two types of LPAs: one which deals with your health and welfare and one which deals with your financial affairs.
Under the Health and Welfare LPA, your attorneys can assist you with making personal decisions if you have lost the capacity to make decisions for yourself. This may include decisions about where you live, the care you receive, and in some situations end of life decisions .
Under the Property and Finances LPA, your attorneys can assist you with your finances whether you have lost capacity or, with your consent, if you simply would like a helping hand.
Why should I make them and what happens if I don’t?
We consider LPAs akin to an insurance policy. We hope that you will never need to use them and that you will be able to manage your affairs yourself for the duration of your lifetime. However, the reality is that many of us will lose capacity at some point in our lives. This may be towards the end of our lives or, for example, if you were to suffer an accident which meant you were unconscious or immobile (even temporarily).
If you don’t have LPAs in place, the bank will not allow anyone else to access your finances or deal with your property unless they are named on the account (this includes your spouse). In terms of decisions regarding your health and personal circumstances, the various institutions involved in your care will make decisions collectively on your behalf and, whilst they may consult your close relatives, your family would be on the periphery of any decision regarding your health, medical treatment, and care.
The only alternative would be to apply for deputyship through the Court and this process is time consuming and expensive (particularly given it will usually arise during times of hardship and emergency). The Court has full discretion as to whether to grant deputyship and is often reluctant to do so in cases involving welfare.
Who should I choose to act as my attorney(s)?
We usually advise that you appoint more than one, to give your LPAs the longevity that they may need and ou can appoint different people to act under each LPA. the different types of LPA set out above.
Your attorneys must follow the principles set out in the Mental Capacity Act 2005 so it is crucial that you appoint people you trust to be your attorney(s). These documents confer a great deal of power and responsibility, and the decision as to who has it should not be made lightly.
How much will it cost to register the LPA and how long does it take?
Before LPAs can be used, they must be registered with the Office of the Public Guardian. There is a registration fee of £82 per document.
In certain circumstances, this fee may be waived or reduced, for example if you are in receipt of benefits. We will be happy to advise you if you would like more information about when this may apply.
Due to a backlog at the Office of the Public Guardian, it is currently taking around 20 weeks for LPAs to be registered. This is another reason why we advise they are prepared as soon as possible.
What are the risks if I don’t have my LPAs professionally prepared?
The process of registering your LPA(s) is likely to take even longer if the Office of the Public Guardian notes an issue with their preparation. The Court is very particular and will scrutinise the documents carefully; they may be rejected for a number of reasons and they need to be prepared, signed and witnessed correctly.
Whilst the OPG may still ask questions of us, our experience means we know what they will be looking for and how to avoid the pitfalls. There is also the benefit that we will be able to deal with any queries raised on your behalf, so that you do not have to correspond with the OPG yourself.
It is essential that you are aware of the responsibilities your attorneys will have, and we are able to provide advice both to you and to your attorneys as to their role so that everyone involved has a full understanding of their legal powers and obligations. If you would like to give your attorneys instructions or guidance as to what you would like them to do, we have a number of precedents to assist particular needs and concerns.
For further information about LPAs, or to book an appointment with a member of our Wills, Trusts and Probate Team, please email firstname.lastname@example.org or call us on 01603 610911.