Lasting Power of Attorney
Whereas a Will deals with how your assets are divided when you die, a Lasting Power of Attorney governs who will manage your affairs in the event that you lose the capacity to do so for yourself. There are two types of Lasting Power of Attorney (LPA) – one for Property and Affairs and one for Health and Welfare. The Property and Affairs LPA allows you to authorise people to manage your financial affairs for you, and the Health and Welfare LPA permits you to state who will make decisions regarding issues of your care, medical treatment and where you will live. It can even allow someone to decide whether life sustaining treatment will be withdrawn in the event of the most serious medical issues arising.
Under each LPA you can nominate one or more people to act as your attorneys. If you have two or more attorneys, they can be appointed jointly (all to sign) or jointly and severally (any one to sign). Replacements can be named in the event that an attorney is unable to act. You can also specify certain people who should be notified before the LPA can be registered and used.
It is always possible that you will make an LPA and never need to use it if you do not lose the capacity to manage your affairs. However, if one is not made and you lose capacity, your family will have to apply to the Court of Protection to be appointed as your deputy in order to manage these decisions for you should the time come. This is the case even if you are married – your spouse has no legal right to make legal or financial decisions for you.
Whilst being a deputy is similar to being an attorney, it is an expensive process that is time consuming to undertake. Probably most importantly, the deputy is closely monitored and does not have the freedoms that an attorney has in managing your affairs. Most family members that we speak to find that they resent the interference of the Court of Protection in a deputyship. This does not happen with an attorneyship, which is therefore much more flexible, cost efficient and simple to run.
It should be noted that the Court of Protection is more likely to appoint a deputy to make decisions about property and affairs than health and welfare. Where there is a dispute about an individual’s health and welfare once they have lost capacity to make their own decisions, it is for the Court to step in and make those decisions on their behalf. This can be a lengthy and expensive process which can be avoided by thinking ahead and nominating an attorney. For more information about health and welfare disputes in the Court of Protection, please click here.
We can provide fixed fees for preparing and registering an LPA and can also reduce our usual fee if one is prepared at the same time as other Wills or other planning is undertaken.
The Office of the Public Guardian (OPG) are currently looking closely at all witnesses’ signatures in Lasting Powers of Attorney. The increased scrutiny by the OPG stems from the regulations prescribing that the full name of all witnesses should be included in the Lasting Power. As a result of this many Lasting Powers are being returned unregistered as the witness has either included their full name but their signature does not match this or they have omitted their middle name but their signature includes a middle initial. We will help to ensure your Lasting Power of Attorney is completed and signed correctly which will ensure the application is processed as quickly as possible.