Among the many and varied detrimental consequences of the COVID-19 pandemic is the impact on the savings and investments of individuals, particularly in relation to estate planning. Financial markets have...
Lasting Powers of Attorney
When we plan for the future, we must accept that some events may be unwelcome. This includes the possibility of becoming unable to make decisions for ourselves due to physical or mental incapacity, whether brought on by an accident, illness or old age.
A Lasting Power of Attorney can help in these and other circumstances, such as being abroad for a lengthy period of time, by giving someone else who you trust (the Attorney) the authority to make decisions on your behalf.
There are two types of Lasting Power of Attorney (LPA), both of which must be registered with the Office of the Public Guardian (OPG):
- Property and Financial Affairs LPA. This gives your Attorney(s) the authority to make decisions about the management of your property and financial affairs, such as whether to sell your home. If you wish, once appointed, they can act on your behalf whether you still have capacity or not. A Property and Financial Affairs LPA avoids the need to make a time-consuming and expensive Court of Protection application in order to access your assets and money in the event of your physical or mental incapacity.
- Health and Welfare LPA. This gives your Attorney the authority to make decisions about your personal healthcare and welfare, including on consent to or refusal of life-sustaining treatment, where you live and who you have contact with. Without this, the decisions would be entirely in the hands of medical and social services professionals who treat you. In contrast with the Property and Financial Affairs LPA, the Health and Welfare LPA only permits the Attorney to make decisions on your behalf following the event of your physical or mental incapacity.
Who can make an LPA?
Anyone aged 18 or over, with the mental capacity to do so, can make an LPA. You cannot make an LPA jointly with another person; each person must make his or her own LPA. The following are the people involved in making an LPA:
- Attorney: an Attorney is the person you choose to make decisions on your behalf. It is an extremely important role and one that the person chosen has to agree to take on. You can also choose a replacement Attorney to act if your first choice Attorney is ever unable to do so, or simply appoint more than one Attorney. Someone who is bankrupt cannot be an Attorney for property and financial affairs.
- Person to Notify: you can choose to name one or more persons to be notified when an application is made to register the LPA with the OPG. This person has the right to object to the registration of the LPA if they have concerns about it, but they do not have any power to deal with your affairs.
- Certificate provider: a certificate provider is a person you select to confirm that you understand the LPA and that you are not under any pressure to make it. The certificate provider will either be a professional person such as a solicitor or GP, or someone you have known for more than two years and who is not a family member.
For each person mentioned in the LPA, you should make a note of their full name, full address, telephone number, date of birth and occupation before attempting to complete the LPA form.
The LPA form
In the LPA form, you must set out your personal details and those of your Attorney(s). When choosing more than one Attorney you will need to appoint them to act either jointly, jointly and severally or jointly for some decisions and severally for other decisions.
Jointly: All the Attorneys must always act together. If one Attorney does not agree with the proposed decision, it cannot be made. Whilst this might be viewed as a safeguard, it can cause severe difficulties, such as having a cheque signed when the Attorneys live in different parts of the country. Equally, if the Attorneys fall out with each other or one of them dies then the LPA cannot be used.
Jointly and severally: This means that one Attorney can act on their own, or some or all of the Attorneys can choose to act together. This can be useful if one of your chosen Attorneys wishes to ‘take a back seat’. Also, if one of the Attorneys becomes ill, dies or loses the mental capacity to act, the remaining Attorney(s) can continue to act. Note that if one Attorney makes a decision on your behalf, then all your Attorneys remain fully responsible for any such decision regardless of whether they were a party to it.
Jointly for some decisions and jointly and severally for other decisions: This is a combination of the two options set out above. For decisions that need to be made jointly, the difficulties mentioned above would apply.
You can give instructions to your Attorney(s) on how they should act on your behalf, such as a duty to produce annual accounts to a professional. The more instructions there are in the LPA, the more likely that it will be more difficult to use in practice.
You can then choose to set out details of the person(s) to notify.
The certificate provider must then sign to say they are happy that you understand the powers you are giving your Attorney(s) and that there has been no pressure on you to make an LPA. The Attorney(s) will need to sign to confirm they understand their responsibilities, such as acting in your best interests and complying with any instructions in the LPA.
What happens next?
You or your Attorney(s) can register the LPA with the OPG at any time after it has been made. There is a Court fee payable (currently £82 per LPA), although this fee may be avoided or reduced if you are in receipt of certain means-tested benefits or have an annual income of less than £12,000. If you think you may qualify for a fee reduction, then please speak to the lawyer who is advising you for details of what to do next.
The person(s) to notify of the application will then receive a notice. The registration process takes no fewer than five weeks to complete but is often far longer. Whilst registration can be delayed until the LPA needs to be used, the length of the registration process means that early registration is preferable. If your Attorney registers your LPA and then uses it before you would want them to do so, you can always cancel it, so long as you are mentally capable.
Do I need a solicitor to make an LPA?
Whilst you do not need to use a solicitor, we can provide appropriate advice and ensure that the registration process is as smooth as possible. We also have experience in assessing mental capacity, which ensures the best possible opportunity for you to sign an LPA, no matter your age or infirmity.
An LPA cannot be amended as time passes. If changes are needed then a whole new LPA is required. We can help you get it right first time.
In the event that an LPA is not possible, for example the person concerned has already lost mental capacity, then authority can be granted to a Deputy by way of an application to the Court of Protection. We have specialists who can assist you with this.
You may also wish to consider how you can protect your assets from Care Home Fees.
To make a Will or a Lasting Power of Attorney, you can choose from the following:
Book an appointment… in the office, at your home, or online.