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If your loved one has already lost mental capacity, there are still options. See how our dedicated experts can help.
A Lasting Power of Attorney (LPA) is a legal document which allows you to choose people you trust to make decisions on your behalf about your property and financial affairs, or your personal welfare, or both.
An LPA is not just for the elderly. If you are over 18 years old, you should consider making one. If you have investments, shares, or property in your sole name, your spouse or civil partner will not have any legal right to access these accounts or property in the event of you being unable to deal with them. They will even encounter difficulties in accessing jointly held bank accounts if one joint owner loses capacity without having a valid LPA in place.
Making a Lasting Power of Attorney offers peace of mind for you and your loved ones, when old age occurs, or if illness or injury happens unexpectedly and leaves you unable to deal with your affairs. You can provide instructions on what should happen to your money and property.
Without a Lasting Power of Attorney, your loved ones may find it difficult to manage, as they may not know your wishes. They may also need to apply to the Court of Protection for a Deputyship Order, which is timely and expensive.
Making a Power of Attorney allows you to:
Appoint someone you trust to look after your affairs and welfare (known as your Attorney)
Specify your wishes
Reduce the likelihood of conflicts in the future by ensuring your signature and the signatures of your attorney(s) are witnessed
There are two different types of LPA. You can choose to have just one, or both.
You do not need to have the same attorney for each type of LPA, and you can choose to appoint more than one person for either one.
A welfare LPA can only be used if you lack the capacity to make a particular health or welfare decision yourself.
Your attorney(s) will then be able to make important health and welfare decisions for you such as where you live and with whom, the care you receive, and whether to give or refuse consent to medical treatment. They’ll also receive access to your personal information like medical records to enable them to make a decision in your best interests.
You can choose whether you wish your attorney(s) to make decisions about life-sustaining treatment for you, should such treatment be needed to keep you alive. If you confirm that you do not want your attorney(s) to make decisions about life-sustaining treatment, the doctor in charge of your treatment will decide your best interests.
They can also make everyday decisions about your welfare, including deciding what you wear, what you eat, and how you spend your day. These can obviously have a big impact on your day-to-day life.
You can restrict the powers of your attorney(s) or you can add instructions or preferences for them to follow. This type of LPA may override any Advance Decision you have in place.
BE AWARE - If a person does not have a health and welfare LPA, decisions can still be made, but no one has absolute authority, which increases the risk of conflict if not everyone agrees with the decisions being made.
A financial LPA can be used both before you lack capacity (on your instructions) and after you lack capacity. Your attorney(s) will be able to make most decisions that you can make about your property and finances, such as running bank accounts, buying or selling property, managing investments, or carrying on a business.
You can restrict the powers of your attorney(s) or you can add instructions or preferences for them to follow.
BE AWARE - If a person loses capacity and does not have a Property and Financial Affairs LPA in place, then it is usually necessary to obtain an order from the Court of Protection for the appointment of a Financial Deputy, which takes time. Until a court order is made, only very limited steps can be taken to secure their financial affairs.
The best way to begin making a Lasting Power of Attorney is to contact our team, who can help you every step of the way.
We have a wealth of experience acting as professional attorneys, in addition to advising and assisting attorneys. We can give practical, forward-thinking advice to help you when considering powers of attorney and the decisions involved.
We’ll have an initial meeting to discuss your personal circumstances and fully explain the Powers of Attorney (how they work in practice, the role of your attorney, and what the best way is for them to appointed). Therefore, it’s a good idea to think about these things before the meeting.
You should consider: Who do you want to appoint? If you appoint more than one person, should they act together at all times or independently? Are there any restrictions you’d like to place on your attorney?
After the initial meeting, we will prepare a draft document of the Power of Attorney and send it for approval. You can come back to us with any queries or changes to be made.
After this, a final document is created, signed, and stored away for safety.
Our specialist LPA solicitors have a wealth of experience and extensive knowledge in the unique circumstances that require plans for an attorney.
We are committed to providing you with the best service, which is dealt with sensitively and efficiently by specialist lawyers who are with you every step of the way.
Adopting a forward-thinking approach, our team is proactive in establishing workable structures for you and your family. Working with you to establish your wishes, they’ll help create a secure plan for the future with the ones you trust the most.
Many of our team are specialists being members of The Society of Trust and Estate Practitioners (STEP) and members of The Association of Lifetime Lawyers (previously Solicitors For The Elderly).
This means we have the skills and continuing professional development to ensure you receive the best possible advice.
We frequently work with our corporate and commercial team to provide bespoke solutions for our business clients with respect to their personal matters.
Another possibility which is rarely considered is if something happens which might impact a person’s capacity to deal with their commercial assets and affairs, be it temporarily or permanently. A physical or mental incapacity can result in that person not being able to deal with their assets. Unless legal authority is given to someone else to act in the owner’s place, the day-to-day running of their commercial interests can be severely disrupted and can have significant consequences.
A Lasting Power of Attorney can ensure that one or several people are given the authority to act on the owner’s behalf should they become incapable. With succession planning in mind, we offer specialist advice around property and financial affairs LPAs, ensuring ongoing support and success of your business.
Using their extensive knowledge and wealth of experience, our Lasting Power of Attorney team works closely with our specialist education and Court of Protection solicitors, providing expert advice to the loved ones of children turning 18 who are expected to, or already have, lost mental capacity.
We’re always there for you. Why not contact us today for an informal chat about your situation?
Our Power of Attorney solicitors help and advise clients on how best to plan for their future.
Here are our frequently asked questions. Contact us today to see how we can help you.
A person may be deemed to lack capacity if they have:
Severe learning difficulties*
Suffered a serious brain injury or illness
Dementia or a similar degenerative disease
No-one is assumed to have lost capacity as capacity can be both decision and time specific. The general rule is that if a person is unable to make important decisions for themselves when it is necessary for those decisions to be made, they would be considered to ‘lack capacity’.
*If you are the parent of a child with severe learning difficulties, you WILL NOT have the automatic right to manage your child’s affairs once they reach 18.
Your attorney must be over 18 years old, have mental capacity and be someone that you really trust.
An attorney can be your spouse, civil partner, child, parent, sibling, friend, relative, or solicitor.
You can choose more than one attorney if you wish, and you can decide whether you would like them to act jointly or jointly and severally, i.e. they can all act together, but they can also act separately if they wish.
You can also choose a replacement attorney(s) in case an attorney is permanently unable or no longer wishes to continue to act for you.
Your attorney(s) are entitled to be reimbursed for out-of-pocket expenses incurred in carrying out their duties. Professional attorneys, such as solicitors or accountants, charge for their services.
Both types of LPA have to be registered with the Office of Public Guardian before they can be used, and you can choose to notify up to five people when an application to register your LPA is made (but you do not have to notify anyone).
This can be important if you want others to know you are putting the documents in place or, if you lack capacity at the time of registration, then you may want to rely on these people to raise any concerns they may have about the application.
It takes between four to five months for the Office of the Public Guardian to register Lasting Powers of Attorney, so the sooner they are put in place the better.
Clients sometimes worry that, if they make an LPA, their attorneys will take over altogether and take over control of their affairs. However, this is fundamentally not the case, and any attorney who did act in this way would be in breach of the strict principles set out in the Mental Capacity Act 2005.
Under this legislation, your attorneys have a responsibility to support you in making your own decisions as long as you are able. They must only decide for you if you are unable to decide for yourself.
Concerning your property and financial affairs, the attorneys you appoint may act on your behalf while you still have the capacity, but only to the extent that they are carrying out your own decisions if it is difficult for you to do certain things for yourself.
For example, they may deal with organisations on the telephone if you are hard of hearing, sign documents on your behalf if a disability prevents you from doing so personally, or keep your finances running properly during a stay in hospital.
Your attorneys are entitled to be reimbursed for out-of-pocket expenses incurred in carrying out their duties. Professional attorneys, such as solicitors or accountants, charge for their services.
No. You can seek to remove someone as an attorney but you cannot add anyone in or change how they are to act. If you wanted to do that, you would have to cancel that Power of Attorney and make a new one. It is therefore important to consider it carefully to get it right from the start.
For each type of LPA, you need a Certificate Provider. This is an independent person who must fill in a Part B Certificate to confirm that, in their opinion, you are making the LPA of your own free will and that you understand its purpose and the powers you are giving your attorney(s). This is an important safeguard and your LPA cannot be registered unless the certificate is completed.
The Certificate Provider can either be someone who has known you personally for at least two years (as more than just an acquaintance) and is not connected to anyone involved in the LPA, or a professional person with relevant qualifications or experience, e.g. a solicitor or a doctor.
You can choose either one of the above LPAs or you can choose to have both. The cost will be according to your requirements. Contact us today for a quote.
If you lose the ability to make decisions for yourself and don’t have a Property and Financial Affairs Power of Attorney, then it is necessary to obtain an order from the Court of Protection for the appointment of a Financial Deputy. This usually takes between four to six months and is substantially more expensive.
Assuming the Order is made, the Court of Protection is then always involved. Annual Accounts need to be completed and sent to the court, an insurance bond needs to be taken out and renewed annually by the Deputies and the Court charges an annual supervision fee. Deputies can only do what the court permits and so it may be necessary to make further court applications to get their approval.
This is a lot more onerous than if you have made Lasting Powers of Attorney. Attorneys should still keep records of what they are doing but, unless there is any complaint or cause for concern, the Court of Protection has no further involvement or fees.
Submit an enquiry and one of our team of experts will be in touch as soon as possible to discuss your needs.
Or call the Lasting Powers of Attorney team on 01522 515971
