A lasting power of attorney (LPA) enables you (the donor) to give someone you trust (the attorney) power over some or all of your assets and decisions. It can be made effective either now or in the future.
Do I need to seek legal advice when making a Lasting Powers of Attorney?
A Lasting Power of Attorney may be one of the most important documents that you will make as you are allowing your chosen attorneys to step into you shoes and manage your affairs in the same way that you would manage for yourself. This could involve selling your home, managing bank accounts, deciding what treatment you may have and where you may receive your care to name but a few of the decisions that could be made on your behalf. It is crucial that these are drafted with you in mind so that you have documents that work on a practical level. Taking advice will enable you to consider safeguards and the practicalities of who would be the most suitable person or persons who will make good decisions on your behalf. Getting specialist advice at the start of the process can reduce the likelihood of abuse of power by ensuring you have documents that are tailored to your needs.
Accidents and illnesses can happen at any stage of life. This could make everyday tasks such as paying your bills and managing your accounts very difficult if not impossible. Making a power of attorney means that you get to plan in advance who you would trust to manage your affairs and make decisions on your behalf if you were unable to.
An LPA can help you plan how your health, wellbeing and financial affairs will be looked after. It lets you choose:
- What decisions you want made on your behalf if you lose the capacity to make them yourself
- Who will make these decisions
- How you want those people to make these decisions
LPA is a safe way of maintaining control over decisions made for you because:
- It must be registered with the Office of the Public Guardian before it can be used
- You choose who knows about your LPA when it’s registered so they have an opportunity to raise any concerns
- Your signature and the signatures of your attorneys are witnessed
- Your attorneys must follow the Code of Practice of the Mental Capacity Act 2005 and act in your best interests
There are two types of lasting power of attorney:
1. Property and financial affairs lasting power of attorney
With a property and financial affairs LPA, you choose one or more people to make property and financial decisions for you. This could include decisions about paying bills or selling your home.
You can make a property and financial affairs LPA at any time. This allows you to plan in advance for a time when you may not be able to make these decisions yourself, such the onset of dementia in later life or a stroke, for example.
Should that time come, your attorney will then be able to pay your bills, manage your investments or sell your house, subject to any conditions you include.
2. Health and welfare lasting power of attorney
A health and welfare LPA allows you to choose one or more people to make decisions such as giving or refusing consent to medical treatment or residential care. You can even give your attorney the power to give or refuse consent to life-sustaining treatment.
A health and welfare LPA can only be used if you lose the ability to make these decisions for yourself. If there is a dispute as to who should be paying for your care, your health and welfare attorney will be able to be fully involved.
Your attorney must always act in your best interests and consider your past and present wishes and feelings, beliefs and values. Your attorney is accountable to the court and may be called upon to justify their decisions if there’s evidence that they’ve acted improperly.
It is important to get the appropriate advice before making powers of attorney to ensure that you have working documents in place that meet your needs.
Our costs for preparing and registering LPA’s are fixed at a flat rate of £250 plus VAT (per LPA).
The OPG charge a registration fee of £82 per power.
Court of Protection
If a person hasn’t made an LPA and loses the capacity to make decisions, you may need to apply to the Court of Protection for an order appointing someone to make decisions on that person’s behalf.
If there’s no one available to act in this role, the court will appoint a deputy from a panel.
You can also apply to the Court of Protection if you believe someone is abusing their powers as an attorney by not acting in the best interests of the donor.
A statutory will can be drafted if a person without a will loses mental capacity. Their estate will pass according to intestacy rules. However, this may not be the best way to distribute the estate.
A statutory will may also be appropriate if a person’s existing will is invalid or circumstances have changed significantly since it was drafted.
If the attorney or deputy believes a new will needs to be drafted or an existing will amended, an application can be made to the Court of Protection.
Let Greenways Law help
Greenways Law solicitors are fully trained and highly experienced in the legislation governing lasting power of attorney and statutory wills. They’re here to help you plan for your later life and give you peace of mind that the right people will make the right decisions for you.
Our fee structure is transparent, flexible and competitive. We can act on a fixed fee, retainer or capped hourly rate basis – whatever’s most suitable for you.