Nov 06 2019

Back to Basics - Lasting Power of Attorney Explained

General News
Back to Basics - Lasting Power of Attorney Explained
A Lasting Power of Attorney is a document which legally enables you to choose who makes decisions on your behalf if you no longer have mental capacity. 
 
As power of attorney solicitors specialising in this area of law, we can help you to understand the implications and advantages of arranging a Lasting Power of Attorney. This article will explain some of the fundamental aspects when using a power of attorney and the circumstances where they may be necessary.
 

When Would a Lasting Power of Attorney be used?

A Lasting Power of Attorney is created whilst you have decision-making capabilities as a precaution for a future time where you may be unable to make decisions for yourself.   
 
A Lasting Power of Attorney would generally be used when an adult is no longer capable of looking after their own affairs, whether this is financial or health-related. Lack of capacity is not only associated with old age but may arise from a serious illness or unexpected injury resulting in hospitalisation (e.g. from a car accident).  As solicitors specialising in this area, we can advise you on implementing your wishes within the Lasting Power of Attorney document to put in place future arrangements for your attorneys to follow. As a result, you control who acts for you on your behalf to make financial and health decisions. 
 
A Lasting Power of Attorney would also act to relieve stress on family members, as once it has been registered, someone can step in to make decisions on your behalf straight away should you fall unwell.  
 
We can provide advice on what provisions to include in your Lasting Powers of Attorney to suit your circumstances.  This can include having separate attorneys to run your business or personal wishes for what type of care or treatment you receive if you are unable to make decisions for yourself.
 

Who Can be Selected as an Attorney?

The role of an Attorney demands a significant amount of responsibility and moral accountability. It is essential that whoever you decide to act on your behalf is suitable for the role.
 
As the decision is a personal choice, the attorneys  may include a combination of the following:
o A spouse or partner; 
o Family; or
o Friends.
 
There may be circumstances where it is suitable to appoint a professional such as a solicitor or accountant but, as this will incur extra expense and they are unlikely to have intimate personal knowledge of your wishes, you may wish to reserve the role for family or a close friend. You are also able to appoint replacement attorneys should your original attorney be unable to act.
 

What are the Advantages of Using a Lasting Power of Attorney?

Creating a Lasting Power of Attorney while you are well, allows you to choose who you would like to step into your shoes and make decisions on your behalf. You can appoint the same attorneys for both Health & Welfare and Property & Financial Affairs, or you may wish to select different attorneys for each role.
 

Cost-Effective

If you lose capacity and you didn’t put in place a Lasting Power of Attorney, then someone on your behalf will need to make an application to the Court of Protection for a Deputyship Order to be able to make decisions on your behalf.  This is a much more costly, involved and time-consuming process at a point where decision making may be critical, and family stress is likely to be high.
 

Legal Clarity

It offers peace of mind to you and your family, knowing that you have set out who makes decisions on your behalf if you can no longer do so on your own.  Unlike a Court of Protection Order, you have full say as to who will act.  With a Court of Protection Order, anyone can apply for a Deputyship Order to take care of your affairs in situations where you have lost capacity. This may not necessarily be the people you would have chosen yourself.
 

Faster Process

A Lasting Power of Attorney takes a short time to register, roughly ten weeks.  Once registered, it can be used straight away (for Property & Financial Affairs) or straight away if you become incapacitated.  In contrast, applying for a Court of Protection Order after you have lost capacity can take around six to ten months.  This will, no doubt, cause a long period of uncertainty and distress for those trying to take care of you when you are already unwell.
 

Provides Comfort

When you have put in place a Lasting Power of Attorney, you are safe in the knowledge that you have appointed people you trust to look after your affairs if needed.
 

How Long Does a Lasting Power of Attorney Last?

A Lasting Power of Attorney can only be used during the lifetime of the donor (the person creating the LPA).  On death, the attorneys are no longer empowered to manage any of the assets, and the Lasting Power of Attorney will come to an end. The Office of the Public Guardian will need to be notified of the death as soon as possible. 
 
If you decide to change your mind (and have decision-making capability), you can either revoke the Lasting Power of Attorney or revoke it and replace it with a new Lasting Power of Attorney appointing new attorneys at any time.  
 
An Attorney may decide they no longer wish to act and they can formally end their involvement by filing a disclaimer with the Office of the Public Guardian. An attorney’s appointment will also come to an end if they lose capacity themselves. An attorney under a Property & Financial Affairs LPA will also cease to act if they are declared bankrupt.  
 
There may be other situations where the attorney is no longer suitable to act, and an application can be made to the Office of the Public  Guardian to remove the attorney.
 

How Much Does it Cost for a Lasting Power of Attorney?

Currently, the Office of the Public Guardian charges a registration fee of £82 per Lasting Power of Attorney. Therefore, if you require both types of Lasting Powers of Attorney, the registration fee will be  £164. 
 
If you wish to engage NSS Legal to prepare and register your Lasting Powers of Attorney, we offer a competitive fixed fee charging scale.  Where appropriate, we can also act as your Certificate Provider, certifying to the Office of Public Guardian that you understand the implications of what you are doing and that no one is forcing you to put these arrangements in place. 
 
If you need advice on how the role of a Personal Representative in the administration of an estate, please take a look at our article on Things a Personal Representative Should Be Aware Of for further guidance. 
 

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