Lasting Powers of Attorney – What is it?

An LPA is a standard form document issued by the Office of the Public Guardian (“the OPG”) that allows you to grant authority to a member of your family or a close and trusted friend (‘your Attorneys’) to make decisions on your behalf should you become unable to control your own affairs.

LPAs are fast becoming a standard part of planning for the future. It can be difficult to think and talk about what would happen if you no longer had capacity and indeed people only tend to think of an LPA as being important for those who are elderly. The reality is that it is important for everyone and unfortunately even those who are younger are not immune from illness, disability or accidents.

It is called a Lasting Power of Attorney because it carries on, or ‘lasts’, even after you have become unable to manage your affairs – whether temporarily or permanently.

To be valid, you must have capacity to fully understand the implications of the arrangement at the time of making it. A Certificate Provider will need to sign the document to say that you are aware of the implications and that nobody is pressurising you into making the Lasting Power of Attorney. A Certificate Provider must be someone who has known you for at least two years, or someone with specialist skills to enable them to confirm a person understands the significance of the document e.g. a Solicitor.

The documents can include ‘Instructions’, which are legally binding on your Attorneys (providing the Court do not find them conflicting or vague), such an Instruction may be that your Attorneys must always use a financial advisor when dealing with your finances over a certain limit, and ‘Preferences’, which is merely guidance for your Attorneys on how you would wish them to act e.g. you wish your Attorneys to ensure you always have a regular haircut. The Attorneys must be at least 18 years old and must not be bankrupt if appointed to make decisions about your property and money. More than one Attorney can be appointed at the same time, replacement Attorneys can be appointed too in case something happens to your original ones.

Safeguards can be built into the documents if you wish and these may include such things as requiring medical evidence of your incapacity before your Attorneys can use the documents. You can also notify other people that you are making the LPA which may help if the documents have to be used, e.g. by notifying your financial advisor or accountant or bank.

There are two types of LPA:

• Property & Financial Affairs: which allows your Attorneys to make decisions about how to spend your money and the way your property and affairs are managed. You can appoint your Attorneys to help you manage your finances even if you haven’t lost capacity should you so wish.

• Health & Welfare: allows your Attorneys to make decisions about your health and welfare. This includes decisions to refuse or consent to treatment on your behalf and deciding where you live. Your Attorneys cannot make decisions on your behalf unless there comes a time when you’re no longer able to make such decisions yourself.

Your Attorneys cannot start making decisions on your behalf until the LPA has been registered by the Office of the Public Guardian. They are also the public body which will make sure your Attorneys are aware of their duty to act in your best interests.

The Implications of not having registered Lasting Powers of Attorney:

Either LPA is only effective once registered, in the event that a person has not completed an LPA and they are unable to make decisions for themselves it is necessary to apply to the Court of Protection for a person or persons to be appointed as their Deputy. This process takes in excess of 3 months and the cost of applying for a Deputyship Order is approximately 4 times the cost of registering an LPA.

Even when the Order is made, it is taking at least 4 months for the Order to be dispatched by the COP. Meaning that 7 months after making an application to the COP, there is very little chance you will have the Order.

In addition, there are annual payments that last as long as you live!

When should you register a Lasting Power of Attorney:

The question we are often asked is when the right time is to set up a LPA and our answer is always the same – the sooner the better. Clients often worry that making a LPA means giving up control, in fact it is quite the opposite as by making an LPA you retain control over who makes your decisions if you cannot. You can choose whether it can be used either before, or only if, you lose mental capacity. In this way it can also be a useful tool as we get older so that whilst we may retain the ability to make decisions we may need help with practicalities for example, during a temporary admission to hospital an Attorney can continue to pay your bills and access money in the bank, with your consent.

Why you should instruct a solicitor to help with an LPA?

The Office of Public Guardian are very strict in their requirements as to how an LPA should be completed. It is currently taking up to 20 weeks for registration to complete and if it is completed incorrectly, it will be rejected, causing further delays. A specialist solicitor will be able to offer expert advice and assist with the completion and registration of LPA’s to minimise potential delays.

Money Saving experts, Martin Lewis produced an article towards the end of last year explaining why everyone should have an LPA. LPA’s

At KBL Solicitors LLP, our specialist Private Client Solicitors have many years’ experience and can help you make the right choices and plan for the future based on your own personal family circumstances. For a no-obligation consultation contact Zoe Fleming, Berin Jones, Jennifer Cooper or Rachel Roberts on 01204 527777 / 01254 268790.