WHAT IS A LASTING POWER OF ATTORNEY?
A Power of Attorney is a legal document by which you give another person or persons (the attorney/attorneys) authority to make certain decisions on your behalf. A ‘Lasting’ Power of Attorney (LPA) is one that remains valid in the event of the person who made it losing mental capacity.
There are two types of LPA:
WHO SHOULD I APPOINT AS MY ATTORNEY(S)
Your Attorney must be trustworthy and have appropriate skills to make the proposed decisions.
If you appoint more than one attorney, you can appoint them to act jointly where they must always make decisions together or jointly and severally where they can make decisions both together and separately it is also possible to appoint them to act jointly for some decisions and jointly and severally for others, although this should only be done with advice, to ensure it does not cause your attorneys difficulty in exercising their powers.
You may also choose to appoint a replacement attorney, in case the original attorney/attorneys die or otherwise cannot act for you.
WHEN CAN AN ATTORNEY ACT?
The attorney(s) will only be able to act when the LPA has been signed by you and them, signed by us or your GP to confirm that you understand the nature and scope of the LPA, have not been pressured into making the power and that there has not been any fraud or other reason why you cannot make the power. The LPA must then be registered with the Office of the Public Guardian. .
After registration the financial LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision, in accordance with your wishes.
The health and welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
EXISTING ENDURING POWERS OF ATTORNEY (EPAS)
Enduring Powers of Attorney were available up to 1st October 2007. Any made before that date will continue to be valid but only in respect of your property and financial affairs. An EPA is only registered when someone has become or is becoming mentally incapable and the process can delay your attorneys from acting when you need them the most.
We therefore recommend that even where you have a valid EPA, you make new Lasting Powers of Attorney for both Health and Welfare and Property and Finance. We can assist you with revoking your EPA.
WHAT HAPPENS IF YOU HAVE NOT MADE AN LPA OR EPA?
In the event of you losing capacity to make financial decisions without an LPA or EPA in place it is possible for an application to be made to the Court of Protection. The court can appoint someone as your deputy, to make decisions on your behalf. In comparison with setting up an LPA when you are well and able, the court process is costly and time consuming. You will not control who the court would appoint as your Deputy in the same way as naming an Attorney and there are onerous duties on your Deputy to report to the court throughout their role.
Many care and treatment decisions can be made on your behalf without the need for a court application, but there can be delay and uncertainty and potential disputes. These can be avoided by appointing an attorney/attorneys to make these decisions for you if you lose mental capacity.
WHAT ARE THE OPTIONS FOR SOMEONE WHO IS LOSING THEIR CAPACITY?
As part of the process of making Lasting Powers of Attorney it is necessary for a certificate provider to confirm that you understand the nature and scope of the LPA, have not been pressured into making the power and that there has not been any fraud or other reason why you cannot make the power.
Where there are no questions of your understanding of the LPA we are happy to provide that as part of the service. However, if you have received a diagnosis that may affect your ability to understand the purpose of an LPA or any part of the process or we are not entirely satisfied that you have been able to understand, your GP is better placed to assess whether it is appropriate to provide the certificate and proceed with an LPA.
We are happy to provide a letter for your GP and provide the completed forms. If they are not able to certify your understanding then we can advise on beginning the court application for a Deputy to be appointed to act for you.
WHAT IS THE PROCESS FOR MAKING AN LPA?
HOW MUCH DOES AN LPA COST?
We offer fixed fees for the preparation of Lasting Powers of Attorney as follows;-
Property and Finance Lasting Power of Attorney £350 plus VAT
Health and Welfare Lasting Power of Attorney £350 plus VAT
We are able to reductions when making both at the same time or if a couple make them together as follows:-
Property and Finance AND Health and Welfare Lasting Powers of Attorney £550 plus VAT
Two sets of Property and Finance AND Health and Welfare Lasting Powers of Attorney for a couple £950 plus VAT
We are also able to offer fee reductions on Lasting Powers of Attorney that are made at the same time as your Will.
CORONAVIRUS: I AM VULNERABLE / SHIELDING. CAN I MAKE A LASTING POWER OF ATTORNEY WITHOUT MEETING ANYONE?
We have put procedures in place to make our office as safe as possible for our staff and visiting clients. However we understand it will not be possible for some clients to meet with us or that you may not feel safe in doing so. Provided we are able to verify your identification, we are happy to prepare and register your Lasting Powers of Attorney on your behalf. However, we will not be able to act as your certificate provider without meeting you in person but this is something your GP can assist with.
WHO TO CONTACT ABOUT YOUR WILL OR LASTING POWER OF ATTORNEY
Please contact Georgia Davies, our solicitor specialising in Wills and Lasting Powers of Attorney if you have any queries or would like to arrange an appointment . Georgia can be contacted on 01743 292444 and GeorgiaD@HBLegal.co.uk