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 etc.
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. Firstly, 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.
We have a dedicated and highly experienced team here who would be happy to discuss with you, in plain English, the implications of making a Lasting Power of Attorney.
Here are some commonly asked questions around Lasting Power of Attorney; we hope that you find our answers helpful:
What is Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you to choose up to four people (your attorneys) to look after aspects of your financial affairs and / or your health and welfare during your lifetime.
What is the difference between an Enduring Power of Attorney and Lasting Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal document that allows an appointed person or people (attorneys) to help make or make decisions about your property and money. Nowadays these types of documents have been replaced by Lasting Powers of Attorney.
I have an EPA in place; do I need to make a Lasting Power of Attorney?
It is worth noting that if you have made an EPA and signed it before 01 October 2007 then your attorneys can still use it, whether or not it has been registered. However you must register your EPA if you start to lose or have lost your mental capacity.
If you want to change your attorneys, or the way that they act, you will need to make a written statement called a Deed of Revocation and make a new Lasting Power of Attorney
Who can make a Lasting Power of Attorney?
Anyone can make a Lasting Power of Attorney if they are over the age of 18 and have the mental capacity to do so.
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.
Are there different types of Lasting Powers of Attorney?
There are two different Lasting Power of Attorney forms that you can choose to enter into - the Property and Financial Affairs Lasting Power of Attorney and the Health and Welfare Lasting Power of Attorney. Most people choose to enter into both documents at the same time:
- Property and Financial Affairs Lasting Power of Attorney - this form allows your attorney or attorneys to manage your financial affairs, including the ability to spend your money on your behalf, sell your property, make investment decisions, correspond with financial organisations and pay care home fees.
- Health and Welfare Lasting Power of Attorney - this form gives your attorney or attorneys the ability to make decisions about your day-to-day care when you are unable to do so, including your healthcare, daily routine, where you live and who visits you. Your attorneys would also be able to access personal information such as your medical records.
It is worth noting that if you choose to enter into both documents, you can decide to appoint different attorneys to manage your finances and your day-to-day care. Just because you give an attorney the power to manage your finances it does not automatically mean that they will control your care, and vice versa.
Who can I appoint as my attorney?
You can appoint anyone who is over the age of 18, has the mental capacity to make their own decisions and is not bankrupt. Your attorney does not need to live in the UK or be a British citizen.
If you choose to appoint more than one person as your attorneys then you must decide how they will make decisions for you:
1. Separately or together, also known as ‘jointly and severally’. This would allow your attorneys to make decisions on their own or with other attorneys. The benefit of this option is that if one of your attorneys were uncontactable, the other attorney would be able to make a decision on your behalf.
2. Together, also known as ‘jointly’. This means that all of the attorneys have to agree to the decision otherwise the decision cannot be made.
If you wish, you can also choose to appoint replacement attorneys to replace your attorney or attorneys if they are unable to act on your behalf anymore.
What else do I need to think about when choosing my attorneys?
It is very important to appoint someone that you trust so that they always make decisions in your best interests. 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 up to 6-8 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.
What guidelines do my attorneys need to follow?
Your attorneys will be under a duty to follow the principles laid down in the Mental Capacity Act 2005, and they must:
- Help you make your own decisions wherever possible
- Assume you can make your own decisions unless it has been established that you cannot do so
- Act in your best interests at all times
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.
There may be that there may come a time when you are unable to manage your affairs by yourself. This may be due to an accident, stroke, head injury, dementia or simply reaching an age where you feel you are unable to manage your finances or make decisions about your day to day care. Alternatively, you may find it easier for a friend of family member to correspond with financial organisations about paperwork, or sign on your behalf.
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.
Can I cancel my Lasting Power of Attorney or change my attorneys?
You can cancel your Lasting Power of Attorney at any time, provided you have the mental capacity to do so.
If you want to add or remove an attorney you will need to make a written statement called a Deed of Revocation and make a new Lasting Power of Attorney.
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 £350 + VAT. If you choose to complete both documents with us then we charge £550 + VAT.
There is also a registration fee of £82 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.
Lasting Power of Attorney advice for your attorneys
When Lasting Powers of Attorney are prepared, we would be more than happy to provide advice and explanations to your attorneys about how the documents work. We will of course not do this without your consent, but if we are asked to do this then we would charge a fee for this service on a time spent basis.