Lasting Powers of Attorney – Back to Basics
It is a legal authority that allows you to appoint people you trust to look after your affairs. There are two areas that you will need to consider:
- Property and Financial Affairs - where you appoint people you trust to look after your finances (bank accounts, investments, property etc)
- Health and Welfare - where you appoint people you trust to look after your welfare requirements (daily care, medical treatment etc)
Each of the above is handled under a separate Lasting Power of Attorney. You can choose to have both or just one. The power “lasts" even if you later loose mental capacity in the future (contrary to a general power that terminates immediately you loose capacity).
Your Attorney should be someone you know well and trust. They must be at least 18 and must not be or become bankrupt. You can can choose more than one person to be your Attorney. Your Attorney must sign and date your LPA and have their signature witnessed within a reasonable period of time following your signature of the document. The Office of the Public Guardian (OPG) currently deem 12 months to be a reasonable period of time but we strongly recommend the signing process is completed by all parties as soon as possible.
If you choose more than one Attorney, you need to decide whether you want your Attorneys to act "jointly" or "separately". You can choose a replacement Attorney in case one or more of your Attorneys cannot or does not want to act. The important point to consider is to ensure a situation does not arise were you do not have a validly appointed Attorney "in place" to represent your interests.
Your Attorney can only act once the the LPA has been registered. You can include a restriction so that they can only act if you are mentally incapable (though evidencing this could be problematic) or you can have no restrictions and allow them to act immediately upon your instruction. If you become mentally incapable, they can only act in your best interests.
If you have a Property & Affairs LPA , they can only make financial decisions such as: buy or sell property, manage investments, carry on a business and access your personal information.
If you have a Health & Welfare LPA , they can make any decisions about your health and welfare such as: where you live, who you live with, access your medical records, what you eat, what you wear and how you spend your day. They will also be able to give and refuse consent to medical treatment according to your best interests. The Welfare LPA also deals specifically with the question of life sustaining treatment.
You can put legally binding restrictions and conditions on your Attorney's powers and the scope of their authority. You can also provide guidance, which can be useful when they have to make decisions on your behalf.
People can be notified of an application to register our LPA. This is an important safeguard, particularly if you choose to delay registration until mentally incapacity is on the horizon. If you opt to tell no one, you are required to have two Certificate Providers (see below).
An independent person is required to complete a Certificate to confirm you are entering into the LPA of your own free will and that you understand its purpose. This is an important safeguard and is a condition of the power. At Gregory Abrams Davidson Solicitors we can act in this role as the Certificate Provider (subject to some minor restrictions). Our charges to act as Certificate Provider are automatically included within our standard fees for LPA’s.
The LPA cannot be used until it is registered. Either you or our chosen Attorneys can register it. The current registration fee is £82.00 per LPA unless you are entitled to a fee exemption / remission. We recommend immediate registration.
You can cancel your LPA even after it has been registered providing you have the mental capacity to do so. However, you will then be back to “square one" and have no provision in place should you loose mental capacity.
The only option will be a Deputyship application to the Court of Protection. This is both an expensive and time consuming application and will involve the Court in your personal affairs for the remainder of your life.
- To find out more about our costs, please go to our Private Client Department Costs page.
- To find out what is included in our services, please go to Private Client Department Services page.
- For more information about timescales, please go to the Private Client Department Timescales page.