Have you ever considered what would happen if you became physically and/or mentally incapable of managing your affairs? When you plan for the future it is sensible to plan for as many eventualities as possible.
A Power of Attorney can help in many situations. For instance, it may come in useful if you are away from the country for long periods, or if you suffer an illness or accident which means you are not able to manage your own affairs. Whatever the circumstances, you may need to have your affairs looked after by someone you trust.
A Lasting Power of Attorney (LPA for short) can help you achieve this. LPAs can also be used to authorise another person to make health and welfare decisions on your behalf should you become mentally incapable of making these decisions yourself.
Why make an LPA?
An LPA allows you to appoint people whom you trust to act as your Attorney. Once registered with the Office of the Public Guardian, your Attorney is then authorised to make decisions on your behalf which you would normally make yourself.
By putting an LPA in place, if, in the future, you should become incapable of looking after your own affairs, it enables those caring for you to avoid the complication of applying to the Court of Protection to be appointed as your Deputy (formerly known as a Receiver).
If you do not have an LPA in place and become mentally incapable of managing your financial affairs, those who are looking after your affairs will have to make an application to the Court of Protection to be appointed as your Deputy. This is a lengthy and costly process (the costs come out of your estate). In the meantime, your bank is likely to freeze your accounts which could mean that bills are left unpaid, causing enormous stress for family members. The Deputy must maintain a full account of your income and expenditure and usually must put in place insurance to protect your estate in the event he or she acts negligently. You have no control over who acts as your Deputy. By making an LPA, you can choose who will be responsible for managing your affairs.
An LPA can be cancelled by you at any time providing you retain your full mental capacity.
What is an Attorney and who can act?
An attorney is a trusted person appointed by you to deal with your affairs. They are under a duty to act in your best interests and deal with your assets as you would have done had you been able to continue dealing with these yourself.
Any person over the age of 18 can be appointed, so long as they themselves are mentally capable and not bankrupt. We recommend that more than one Attorney is appointed. There are several options available to you regarding how your attorneys can be appointed and the acts they can undertake.
Setting up an LPA
We recommend that you take legal advice about your options. It is important that the LPA is drafted correctly in accordance with the relevant law. If not, it will be rejected by the Office of the Public Guardian.
When will my attorney take over my affairs?
Your Attorney cannot act until your LPA has been registered with the Office of the Public Guardian (OPG). The registration process can take between 8 and 12 weeks depending on the volume of applications being dealt with by the OPG at the relevant time. We therefore recommend that you register your LPA as soon as it has been signed so that it is immediately available to your Attorneys.
Unless you have restricted your Attorney’s authority, they can act whenever it becomes necessary, for example upon the onset of an illness or if you have an accident which incapacitates you. Health and welfare Attorneys can only act if you become mentally incapable.
Safeguards: Certificate provider and named person
It is a legal requirement that a Certificate Provider signs your LPA to confirm that you understand what your LPA is, the authority you are giving to your Attorney and that you are not being pressurised into making it. The Certificate Provider must either be someone who has known you for two years or more (as more than an acquaintance) or someone with relevant professional skills such as a GP or a solicitor.
You must choose at least one person to be told when your LPA is registered with the OPG. This person has the right to object to the registration of your LPA if they have concerns.
How can Wright Hassall help?
At Wright Hassall, we can draft an LPA for you and advise you fully regarding the nature and scope of the LPA.
We can provide the certificate of understanding which is now a legal requirement for anyone making an LPA. We can also deal with the registration of the LPA on your behalf after it has been signed. We offer fixed fee packages for these services.
Expertise and a friendly ear
If you would like to talk, in confidence, about LPAs or more generally about the services that we can provide through our Wright Future team, please call Claire McGinnity. With experience of working with people both retired and nearing retirement, and their families, Claire can talk through the options you face in a straightforward and friendly way.
July 2010
For further information about Lasting Powers of Attorney, please contact
Claire McGinnity.
