Lasting Power of Attorney

For various reasons you may find that, during your lifetime, you are unable to manage your own affairs and need a family member or, in some instances, a friend to help you. This might be due to an accident or just getting to the stage where you need some assistance with managing your money.

Please contact our legal experts for advice. You can contact Michelle Collins or Claire Nelson, who are both Partners at our firm Alternatively, if you have a more general enquiry please call 01603 625231. You can also download our leaflet here

A Lasting Power of Attorney is a document whereby you choose who would assist you if you cannot manage. This person, or persons, otherwise termed your ‘attorney(s)' are there to help you manage your affairs.

There are two main types of document that we can prepare for you here at Cozens-Hardy. The first - and most popular - is chiefly associated with your money and property. The second is associated with your personal welfare, which broadly encompasses where you would live etc in the event that you needed to enter residential care.

Many people put off making a Lasting Power of Attorney until it is too late - and they may then lack the ability to execute such a document. 

This can have two major effects. First, your family may have to make decisions for you that they were otherwise unprepared to make and, secondly, in the absence of you personally appointing someone as guardian of your wellbeing and finances, you leave your family having to make expensive and complicated applications to the Court of Protection to have themselves appointed as what is termed a ‘Deputy' to manage your affairs.

Creating a Lasting Power of Attorney now does not mean that you can no longer manage your affairs. It is a safeguard against the future. Restrictions can be placed in the document stating the circumstances under which it can be used, giving you the peace of mind that management of your affairs will not be taken from you unnecessarily.

And don’t worry if you have no one suitable to act as your attorney, because you are able to appoint one of our experienced solicitors as your attorney.

FAQs:

Who decides if someone has mental capacity?

When you make a Lasting Power of Attorney, a Certificate Provider has to decide whether you are capable of entering into a Lasting Power of Attorney. This may be someone you have known for at least two years or alternatively a professional, such as a doctor, Power of Attorney lawyer or social worker.

What else do I need to think about when choosing my attorneys?

You may like to think about how well they look after their own affairs such as their finances or how well you know them. Also, you may want to consider how happy your attorneys would be to make decisions for you, for example accepting or rejecting life-sustaining treatment on your behalf.

Within the Lasting Power of Attorney documents you can specify if you want different attorneys to be responsible for different aspects of your affairs. This means that you can restrict your attorneys’ powers in any way, and these restrictions would be legally binding.

The majority of people choose to appoint their spouse, children, close relatives, friends or a professional such as a Power of Attorney solicitor/ lawyer. If you choose to appoint a professional as your attorney then it is likely that they will charge a fee for doing this.

When will my attorneys be able to act?

Lasting Powers of Attorney need to be registered with the Office of the Public Guardian before they can be used by your attorneys, and can take between 8 to 16 weeks to be registered.

If you lose mental capacity before the Lasting Power of Attorney is registered, but you did have capacity when you made the Lasting Power of Attorney, then your attorney can apply to register it for you.

The Property and Financial Affairs Lasting Power of Attorney can be used as soon as it has been registered with your permission; this could be particularly helpful where your mobility or hearing may be an issue, or if you go on holiday.  By contrast, your attorneys can only use the Health and Welfare Lasting Power of Attorney when you have lost mental capacity.

Is it important to make a Lasting Power of Attorney?

You are probably thinking that you do not need a Lasting Power of Attorney because you are fit and healthy. This is a common misconception, because you can only set up a Lasting Power of Attorney if you have the mental capacity to do so. Once you have lost capacity it is too late to make a Lasting Power of Attorney. It is therefore important to prepare the documents whilst you can, ready for the situation when you need help.

You should also bear in mind that the law does not automatically give your next of kin, or executor, the right under your Will to access your finances or manage your health and well-being.

What happens if I lose mental capacity and have not made a Lasting Power of Attorney?

If you fail to make a Lasting Power of Attorney, and lose mental capacity, your family will have to make an application to the Court of Protection to have someone appointed as a ‘Deputy’ in order to manage your finances and health and welfare. 

The Court of Protection will ultimately make the final decision as to who is appointed as your Deputy and there is the risk that someone is appointed that you may not want to make these types of decisions for you. 

The Deputyship process is time consuming, in that it can take several months for an Order to be issued and it can be costly. It is important to bear in mind that whilst waiting for the Order to be issued, your family or friends may have decisions to make in the meantime and bills to pay on your behalf, without the funds to do so.

Do I need to make a new Lasting Power of Attorney if my attorney changes their name or address?

If your attorney changes their name or address, you must write to the Office of the Public Guardian letting them know about this. It is more than likely that you will need to provide supporting evidence such as a marriage certificate, for example showing the change of name. It is very important that you do not make changes to your Lasting Power of Attorney document as it may become invalid.

Do I need to ask a Power of Attorney Solicitor to prepare my Lasting Powers of Attorney?

You can choose to prepare and submit a Lasting Power of Attorney without a solicitor but here are some of the reasons why it is advisable to seek advice from a legal professional:

• It goes without saying that errors within the Power of Attorney forms can cause serious implications - the worst being that your attorneys would not be able to act for you. A legal professional will be able to ensure a valid document is prepared.
• A legal professional will be able to provide you with the additional service of tailor-making the document to your individual circumstances. For example, you may want to restrict how some of your attorneys make decisions on your behalf, make specific wishes about your care or direct how your discretionary fund manager will manage your investments.   
• A legal professional will be able to provide you with guidance throughout the process and prepare all of the documents for you.

How much does a Lasting Power of Attorney cost?

Our fees for a Property and Financial Affairs or a Health and Welfare Lasting Power of Attorney are currently £425 + VAT. If you choose to complete both documents with us then we charge £625 + VAT.

There is also a registration fee of £92 per document payable to the Office of the Public Guardian. If you are on a low income, you may be able to apply for a discounted registration fee, and if you are receiving certain benefits, you may not have to pay for the registration fee.