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Coodes Solicitors Private Client Executive Bernadette Polkinghorne answers some of the most common questions clients ask about Lasting Power of Attorney.
A Lasting Power of Attorney (LPA) is a legal document that enables you to appoint someone (known as an attorney) to help make decisions on your behalf. If you are no longer able to manage your own affairs, for example through a condition like dementia or a life-changing accident, your attorney can step in to make decisions for you.
There are two types of LPAs, which cover a whole range of considerations relating to your life, health and finances:
Many people choose a family member to act as their attorney, but you may want to appoint a close friend.
Choosing an attorney is an important decision. It must be someone you can trust to always act in your best interests and wherever possible, allow you to make decisions yourself.
Some people decide to appoint more than one attorney. In this case, you will need to decide whether the attorneys act together in all decisions or if they can potentially act independently of one another. Allowing attorneys to act independently provides greater flexibility and can be helpful if, for example, one of the attorneys is away or when an urgent decision needs to be made.
It is not something most of us would choose to think about, but any of us could, at any time, have an illness or accident that would leave us incapable of managing our affairs. We would advise anyone over the age of 18 to consider Lasting Power of Attorney.
If you do not have an LPA in place, the Court of Protection would appoint a Deputy to make decisions on your behalf. This means you are leaving the choice of who will act for you to the courts, which could mean someone is appointed who you would not personally have chosen. Appointing a Deputy is also a much more time consuming and expensive process than preparing an LPA. The Court application fee alone is £400 and it can take up to six months or more for the Deputyship Order to be issued.
An LPA must be registered with the Office of the Public Guardian before it can be used. You will need to apply separately for the two different types of LPAs: Health & Welfare and Property & Financial Affairs.
An experienced lawyer can guide you through the process and answer any questions you may have.
It is important to know that you can make an LPA at any time, after the age of 18. While most of us associate these legal documents with later life, sadly they sometimes come into play much earlier. If you have a life changing accident, for example, having an LPA in place will help ensure your wishes are followed.
Once you have submitted the LPA forms to the Office of the Public Guardian, registration usually takes between eight and ten weeks.
The LPA will end on your death. The attorney will then no longer have powers to make decisions on your behalf. Your estate will then be administered according to the wishes set out in your Will, or under the rules of intestacy if you do not have a Will.
Sadly, disagreements around LPAs sometimes arise among family members. This may be because there is a concern that the person putting in place the LPA (known as the donor) is not making an informed choice about who they are appointing as attorney.
Disputes also sometimes occur when other family members or friends do not believe the attorney is acting in the donor’s best interests. This could include when the attorney is spending money on the donor’s behalf or making key decisions about their health and welfare.
If you have any concerns about a family member’s LPA, you can seek legal advice. Our Personal Disputes team has experience of these complex and sensitive situations.
Understandably, many of our clients are concerned about losing control over their finances and other areas of their lives once an LPA is registered.
It is important to know that your attorney will not have free rein over your personal affairs without your authority. Attorneys have to comply with the Mental Capacity Act 2005 Code of Practice. The Court of Protection and Office of the Public Guardian can check your decisions, carry out visits and investigate any activity that your attorney is carrying out on your behalf.
While there is growing awareness of the importance of LPAs, many people focus on their financial wishes rather than considering other aspects of their lives. Research from Solicitors of the Elderly has shown that 96% of people in the South West do not have a Lasting Power of Attorney for Health & Welfare.
A Health and Welfare LPA not only covers your preferences for how you would be cared for if you became unable to look after yourself. It also sets out your wishes for whether or not you would want to receive life sustaining treatment if you end up in a vegetative state and are unlikely to make a recovery.
Many people have strong feelings about what they would wish to happen if they became seriously ill and unable to recover. For some, length of life is the priority, while for others dignity and being pain-free is more important.
Having an LPA for Health & Welfare would empower your family to make the right decisions for you should you become suddenly seriously ill.
Some people choose to appoint a solicitor to help them draft and set up an LPA, while others choose to do it themselves.
While it could seem to be an easier and cheaper option, organisations such as Solicitors for the Elderly have raised concerns about taking a DIY approach to setting up such a powerful legal document. Sadly, we have heard many examples in recent years of elderly abuse resulting from LPAs that were not properly drawn up.
It is important to know that once an LPA is registered you can’t change it, you can only revoke it. Therefore, it is important to get it right. If you are considering setting up an LPA, I would strongly recommend getting expert legal advice.
For further advice, please read our Power of Attorney Brochure or contact Bernadette Polkinghorne on 01726 874776 or b.polkinghorne@coodes.co.uk
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