Everyone should consider making a lasting power of attorney (LPA) as there are times in every person’s life- when they may need someone else to act on their behalf. LPAs are not just something to consider in your later years as 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. Property and Financial LPAs enable a person to act on behalf of another if, for example, they are ill or disabled and cannot act for themselves in relation to their financial affairs. A Health & Welfare LPA is more concerned with decisions such as whether the person should receive life sustaining treatment, where they live and with whom they might socialise.
In addition to a witness to your signature, you will need someone to sign a certificate in the LPA to say that they have discussed the form with you, they are satisfied that you understand what you are signing, that you had mental capacity when you signed it and that you are not acting under duress. The certificate provider must have known you for two years or be a qualified professional. 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 or medical professional 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 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 or health and welfare, for example, this means that your attorneys could step into your shoes and 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. In addition, you can give them guidance as to how you would like them to use their powers.
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 As above, before the LPA can be used it must be registered with the Office of the Public Guardian (OPG) but, it does not need to be registered straight away. Clients ought to consider these pros and cons:
- 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 least 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 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
- The attorney can use a property and financial affairs power immediately it has been registered, unless you state otherwise
What happens without a lasting power of attorney?
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.