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Lasting Powers of Attorney – More Important than Ever

Given the unprecedented and uncertain times we are going through, it is no surprise that there is a rush to making Wills. It’s understandable, with the constant updates on the news, people want to leave their affairs in good order.

Without meaning to add to the pressures, you would do well to go a step further while you are at it by tackling two further important things. In this two-part article, I will deal with the first and the second will be posted in a follow up next week.

LASTING POWERS OF ATTORNEY

By having made a Will, you have dealt with your affairs after you are no longer alive. But what about while you are still kicking around? It’s only logical that you do the same for the duration of your lifetime. This is achieved by having a Lasting Power of Attorney (LPA).

What is it?

An LPA is simply a legal document which allows you (the Donor) to appoint someone else (the Attorney) to make important decisions on your behalf when you no longer can due to the loss of mental capacity (non-compos mentis).

There are two types of LPAs; one that deals with health/welfare decisions and the other which covers property/financial decisions.

Can you give me a practical example?

For instance, a property/financial LPA would prove extremely useful in current times if you are deemed vulnerable or in the ‘high risk’ category of Covid-19. An LPA would very simply allow whoever you appoint as your Attorney to continue with the things while you are housebound – for example, paying bills, drawing cash etc. If you have business interests or are a landlord, you can delegate tasks (i.e.: inspecting the property, physical dealings with estate or managing agents etc.) to the Attorney instead. This way, the cogs in the wheel are still churning and have not come to a standstill as a lot of businesses unfortunately have.

With a health/welfare LPA, this can used to ensure that you receive the care you desire in the event that you lose mental capacity, in particular in light of the fact that COVID-19 can lead to hospitalisation. The heart of this LPA is deciding whether you authorise your Attorney to decide life-sustaining medical treatment. In other words, a ‘Do Not Resuscitate’ clause.

Does it only work if I lose mental capacity?

The property and financial LPA has a distinct advantage in that it specifically allows you (the Donor) to use the LPA whilst you are still compos mentis. Because you have mental capacity, you can oversee and control the Attorney and take over the reins when circumstances return to normal. It’s a win win result for you- the Donor.

The health/welfare LPA is only ever used when you lose mental capacity.

 

What if the Attorney strays?

Rest assured, the Attorney does not have unfettered powers. On the contrary, an Attorney has legal duties and must act in the Donor’s best interests and take reasonable care when making decisions on your behalf. Furthermore, an Attorney must act in accordance with the terms of the LPA as stated by you the Donor. It is equally important, that an Attorney must also help you the Donor to make your own decisions where possible, rather than simply taking control.

Overall, if you fear any foul play, the Office of the Public Guardian plays a vital safeguarding role and investigates any abuse or fraud.

What happens if I lose mental capacity and I don’t have an LPA in place?

It can be messy I’m afraid! If a decision does need to be made, then your next of kin may well be forced to apply to become a Deputy by making an application to the Court of Protection. Not only is this more complicated, it takes longer and is far more expensive (i.e.: the court fee alone is £365, a court hearing almost £500 and there is an annual supervision fee to be paid as well as an annual insurance bond – which can end up costing in the thousands!).

 

How much does it cost and how long does it take?

Your LPA must be registered with the Office of the Public Guardian (OPG) who charge a registration fee of £82 per LPA. However, if your income is below a certain level, there may be little or no fee to pay. To see how much we charge, please see our fees for LPAs on our website where you can also see our discounted offer if you decide to do a Will as well.

We can complete the form within a day providing we have all the information from you. The registration process with the OPG, however, takes between 2 – 3 months.

Feel free to give our team at Oliver Fisher Solicitors a call on 020 3219 0145 or email our team directly – Stephen West (stephen@oliverfisher.co.uk) or Samina Aslam (samina@oliverfisher.co.uk) or Lisa Bilham lisa@oliverfisher.co.uk for your enquiries.