WHY A LASTING POWER OF ATTORNEY IS A GOOD IDEA
A Lasting Power of Attorney (LPA) enables you to appoint people of your choice to act on your behalf should you become mentally or physically unable to administer your finances or mentally unable to make personal welfare decisions. Making an LPA ensures that the person you want to make decisions for you will be able to do so.
Once the LPA is in place, your Attorney will be able to help write letters for you, sign cheques, and liaise with your bank or pension provider. They will be able to speak on the phone on your behalf and help you with all aspects of your property and finances. This may help take the pressure off you and help some of those inevitable worries be someone else’s responsibility.
If there is no LPA in place and you lose mental capacity, there is no one that has the legal authority to assist you with your affairs. It is a commonly misheld belief that your spouse or a family member can speak and act on your behalf, this is unfortunately not the case. In these circumstances, the only option available to your friends and family is to make an application to the Court of Protection for the appointment of a Deputy.
Anyone can apply to be a Deputy, this may or may not be the person you would have chosen. With an LPA in place, this lack of control can be avoided. An LPA not only has the people of your choice acting for you but you can also choose what sort of authority they have and place other conditions and restrictions on what they can or can’t do.
An application for Deputyship can be lengthy (typically 6-9 months) and until the final Order is made the Deputy has no power or right to act on your behalf. The Court of Protection oversees the conduct of both Attorneys and Deputies but the Court is much more involved with a Deputy. Under an LPA, Attorneys will be able to administer your affairs without much Court involvement, unless there is a problem which may be outside the scope or expertise of your Attorney. Under a Deputyship Order a Deputy has to provide the Court with annual reports and accounts. The Court may also send out a visitor to check on both you and your Deputy to make sure your needs are being catered for.
The costs associated with an LPA are significantly less that a Deputyship. The registration costs for an LPA are £82 and the legal costs involved with their preparation are considerably less expensive. For a Deputyship there is an application fee of £371, an insurance bond premium and an annual supervision fee which can range from £175 to £400 depending on who is appointed.
LASTING POWERS OF ATTORNEY – the documents
Lasting Powers of Attorney (LPA) came into force on 1 October 2007 and replaced Enduring Powers of Attorney (EPA) from that date, although EPAs already in existence remain valid.
An LPA enables the person making it (the Donor) to give someone else (the Attorney) the legal right to deal with his or her affairs. There are two types of LPA available, Property & Financial Affairs and Health & Welfare.
Property & Financial Affairs LPA
The Donor can appoint their Attorney to manage their finances and property. Whilst you still have capacity to make decisions the Attorney is purely acting at your direction. The LPA can contain any number of conditions and restrictions, but it will enable an Attorney to deal with your bank and other financial investments. They will be able to buy and sell property. They can deal with your tax and benefits and can deal with pension providers.
The LPA cannot be used until it has been registered with the Office of The Public Guardian (Court of Protection). It can be registered whilst the Donor still has mental capacity. The Attorney is under an obligation to act in the Donor’s interests at all times; the Court of Protection has various safeguards to ensure this.
Health & Welfare LPA
The Donor can appoint their Attorney to make decisions about their healthcare and general welfare, including refusal of medical treatment, and deciding where the Donor lives. The Attorney can only make these decisions once the LPA has been registered and the Donor has lost the ability to make these decisions for themselves.
The LPA can incorporate Living Will/Advance Decision provisions and, again, can give the Attorney directions and impose conditions and restrictions on the scope of the Attorney’s powers.
The Forms
LPAs are powerful documents and need to be given careful thought before entering into. It would be sensible to consider the scope of the Attorney’s authority carefully and to discuss this with the prospective Attorney/s and any relevant health professional, if appropriate. If you believe that entering into an LPA would be helpful for you, now or in the future, please contact us for more information.
EXISTING ENDURING POWERS OF ATTORNEY
If you have an EPA then it is still a valid document but it cannot be altered or amended. It would be advisable to check that the appointment of your Attorney is still appropriate and yours or their circumstances have not changed. If you would like us to check your current provisions, or for further advice on powers of attorney, please contact us.
For more information : Please contact Emma Woollard on 01473 298342 or at ewoollard@prettys.co.uk.