A need-to-know guide from Simons Rodkin Solicitors LLP
A Lasting Power of Attorney is a legal document which allows one person (called the donor) to choose another person or persons (called the attorney(s)) and gives that person or persons power to make decisions on behalf of the donor including when the donor does not have the mental capacity to make the decision himself or herself.
These powers given to the attorney(s) can be particularly useful if a person becomes unwell and is unable to manage physically or mentally his or her affairs.
An LPA is a document which is completed and signed by the donor while the donor still has the mental capacity and therefore takes effect during the donor’s lifetime, It is entirely different to a will which takes effect only on the testator’s death.
Unlike an ordinary power of attorney, an LPA can continue even if the donor loses mental capacity.
They are as follows;
1) A Lasting Power of Attorney for Property and financial affairs.
This type of Lasting Power of Attorney gives the attorney power to manage a property and financial affairs for the donor. This means that acting under such an authority, the Attorney can, for example, pay the donors bills, collect income deal with benefit payments and even deal with the sale of the donor’s house. Under this type of Lasting Power of Attorney, your Attorney(s) can make decisions for you, as soon as the Lasting Power of Attorney is registered, whether or not you lack mental capacity unless you put a restriction in it.
2) A Lasting Power of Attorney for Health and Welfare.
This type of Lasting Power of Attorney allows the Attorney(s) to take decisions which concern the donors personal welfare, for example, whether to give or refuse consent to particular types of health care including decisions in connection with medical treatment, and also decisions in regards whether the donor should reside in their own home with support of social services or move into care home. Your Attorney(s) can only act for you when you cannot make the decision in question.
It is important to consider when making a Lasting Power of Attorney, who your Attorney(s) will be. They can be members of your family such as your partner, children or a professional person such as your Solicitor or Accountant. However, it is important to note that a professional person may charge for his/her services. The key thing to ensure is that your Attorney(s) are over the age of 18.
Your Attorney must be trustworthy and will have to have the sufficient skills to sometimes manage very complex financial affairs.
You are also at liberty to choose how many Attorneys you want to have. For example, if you’re going to have two Attorneys, then you can do so. It is possible to appoint Attorneys to act “together” or “together and independently” or “together in respect of some matters and together and independently
In respect of others”. If Attorneys are appointed to act on your behalf “together” then they must, at all times, act together and not separately or independently. If one of your Attorneys dies, become bankrupt or becomes mentally incapable the whole Lasting Power of Attorney will be terminated.
Similarly, where the appointment of Attorneys is “together and independently” they can act together or separately. If one of the Attorneys dies, becomes bankrupt or becomes mentally incapable the Lasting Power of Attorney will continue in this instance. If you chose the latter type of appointment and appoint Attorneys to act “together in respect of some matters and together and independently in respect of others”, clarification needs to be made as to what decisions are made jointly and what decisions are made independently. This would require careful thought and consideration, and you may wish to discuss the matter with the team at Simons Rodkin Litigation Solicitors in some depth.
Replacement Attorney(s) can also be appointed to cater for the event that if something happens to an existing Attorney that renders them unable to properly act for you, a new Attorney can step in.
You can place restrictions and conditions upon your Attorney(s). If no restrictions and requirements are provided, then your Attorney(s) will have a general authority to manage all of your property and financial affairs. You can restrict an Attorney(s) power so that the Attorney will only have the ability to control the assets you have named. If you do decide to restrict the Attorney’s power in this way, then you will need to consider how the other assets not covered in the Lasting Power of Attorney will be managed. In some cases, it may be necessary for the Court of Protection to intervene and appoint a deputy. This in itself can be a costly process and may defeat the object when making a Lasting Power of Attorney.
A Certificate provider must also be appointed who will confirm that you understand the Lasting Power of Attorney and that you are not under any pressure to make it. There are two types of certification that you may choose from. “Knowledge Certification” the person chosen must have known you personally for at least two years. A “Skills Certification” can be provided by someone who has professional skills and expertise to certify the Lasting Power of Attorneys such as a solicitor or medical practitioner. The team at Simons Rodkin Litigation Solicitors can provide this service for you if you wish.
To ensure that you have not been pressured to make your Lasting Power of Attorney application you can choose up to five people to be notified of the registration of your Lasting Power of Attorney. If any of these people have concerns about the registration of your Lasting Power of Attorney they may raise their concerns. It acts as an additional safeguard for you. The named persons must know you well enough to be able to raise concerns and can be either your family, friends or health workers. The people you name are given five weeks from the time they receive the notice to raise any concerns with to the Office of the Public Guardian. Assuming that there are no problems with the Lasting Power of Attorney and nobody raises any concerns, the Office of the Public Guardian will register the application six to eight weeks after receiving the same.
The Lasting Power of Attorney will only be able to take effect once it has been registered with the Office of the Public Guardian. The Office of the Public Guardian is an agent of the Ministry of Justice and supports the registration of a Lasting Power of Attorney. The fees payable to the Office of the Public Guardian for registering the Lasting Power of Attorney currently stand at £130.
Once the Lasting Power of Attorney has been registered your Attorney(s) and Certificate provider will retain the right to manage your affairs. It is your decision when your Attorneys can step in and act on your behalf. While the Power of Attorney comes into effect once it has been registered with the Office of the Public Guardian, you can restrict the power so that it can only be used if your Attorney(s) believe that you have or are about to become mentally incapable.
Further, subject to the terms of your Lasting Power of Attorney your Attorney(s) do not have the power to take away your money or effects or make or amend your Will without the consent of the Court of Protection.
Lasting Power of Attorney can be cancelled at any time, but you must apply to the Office of the Public Guardian for it to be de-registered before it can be entirely cancelled. Death automatically cancels the Lasting Power of Attorney. Those named in your Will as Executors will then take over the management of your affairs.
Please contact Michael Nemeth for a consultation on 02084466223 or email michael.nemeth@sr-law.co.uk.