Lasting Power Of Attorney Solicitors for clients in Sussex including Brighton, Uckfield and Seaford
Everyone should consider making a lasting power of attorney as there are times in every person’s life, when they may need someone else to act on their behalf. It is not just something to consider in your later years but there are situations throughout your life when it could be useful.
A Lasting Power of Attorney is a legal document that enables one person to make decisions on behalf of another. There are two types of LPAs: Financial and Welfare.
Financial LPAs enables a person to act on behalf of another if, for example, they are ill or disabled and cannot act for themselves. A Welfare LPA enables a person to act on behalf of another if that person does not have the mental capacity to act for themselves, for example in the case of a severe stroke.
What Happens Without an LPA
Without an LPA, it may be necessary for family members to apply to the Court of Protection for authority. This can be a distressing and lengthy process and is far more expensive than making an LPA. Once all parties have signed the LPAs, they must then be registered with the Office of the Public Guardian before they can be used.
The law has changed in relation to how you appoint people to manage your affairs, in the event you are unable to do so yourself. The people you appoint are still called attorneys but now the form you use to appoint them enables you to specify, in some detail, what powers attorneys should have.
Certificate Provider
In addition to a witness to your signature, you will need someone to sign a certificate on the LPA to say that they have discussed the form with you, they are satisfied that you understand what you are signing and that you had mental capacity when you signed it. The certificate provider must have known you for two years or be qualified to assess this.
Rix & Kay can provide this certificate, unless you are appointing us as your attorneys. In this case we can make arrangements for an independent solicitor to provide such certificate. Your certificate provider may be asked to give evidence in court should there be a future dispute.
For the LPA to be used by your attorneys, it will need to be registered with the Office of the Public Guardian (“OPG”). If it is registered with the OPG, this doesn’t mean you are necessarily incapable of handling your affairs, you may still wish to do some things but direct your attorney to take over other aspects. You can put guidance in the LPA.
You may decide the LPA does not need to be registered straight away. In this case, we can store it for you free of charge until we are notified by you, your attorney or your doctor that it is needed.
Choosing An Attorney
The decision of who to appoint is an important one. You can appoint any number of attorneys and substitute attorneys (in the event the attorneys you have chosen cannot act for any reason). You should trust the people you appoint and be sure they will act in your best interest. You can appoint family, friends or a professional person to act on your behalf.
You can grant your attorneys general powers over all your property and finances, which means that your attorneys step into your shoes and can do anything with your assets including selling your property and making gifts. You can put restrictions in the LPA, restricting their power which will bind your attorneys. Alternatively, you can give them guidance. Any restrictions or guidance needs to be carefully worded.
When Can The Attorney Act?
The attorney will only be able to act when the LPA has been signed by you and your attorney, certified by a person that understands the nature and scope of the LPA and have not been unduly pressured into making the power.
The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of Public Guardian before it can be used.
The property and financial affairs LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision.
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
Any enduring power, validly made before 1st October 2007, can still be used but only in respect of your property and financial affairs. If you wish to give authority over your health or welfare you will need to make a health and welfare LPA.
When To Register
Before the LPA can be used it must be registered with the Office of the Public Guardian (OPG). Their fee covers registration and, should it occur, their costs of investigating allegations of mismanagement.
Delay Registration
- You don’t pay the registration fee until the power needs to be used
- The registration process delays the use of the power by at last six weeks, at a time when it needs to be used. There is no scope to use the power during this process and if the attorney needs to make decisions urgently, they will need to apply for a Court order
- You can change your mind and cancel the power without any problem, No need to keep the OPG informed of any change of address/name
- You control a property and financial affairs power, so it cannot be used until you choose for it to be registered or it needs to be registered for use
Register Immediately
- You pay the fee even if you do not need the power to be used
- As soon as the power needs to be used it can be activated immediately, without any delay
- If you change your mind and cancel the power and make another power, then further fees will need to be paid to the OPG
- There is a need to keep the OPG informed of any change of address/names of attorneys
- The attorney can use a property and financial affairs power immediately it has been registered, unless you state otherwise
