Lasting Power of Attorney – Peace of mind for your future

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People often don’t consider that long before their death they might become incapable of managing their day-to-day affairs. It’s important to consider how your family might cope if you were to be involved in an accident or were to suffer a stroke or the onset of dementia.

Making a Lasting Power of Attorney (LPA) allows you to nominate a trusted relative or friend to look after your affairs in such an eventuality.

If you do not have a Lasting Power of Attorney and lose mental capacity a deputy will need to be appointed. Applying for a deputyship order is expensive and may result in the wrong person being your deputy, for example, a professional person that you do not know, an estranged child or a spouse that you may have separated with.

By having a Lasting Power of Attorney in place it will be YOU who decides who will deal with your affairs if you lose capacity and you will have more control over when your attorney will take over your affairs.

There are 2 types of LPA:

Lasting Power of Attorney - Health & Welfare

Health & Welfare

A Health & Welfare Lasting Power of Attorney (LPA) allows you to plan ahead with regard to your personal healthcare and welfare by choosing one or more people to make decisions on your behalf.

The Attorney(s) you appoint to make personal welfare decisions will only be able to use this power once the LPA has been registered and provided that you cannot make the required decision for yourself.

You can decide to give your Attorney the power to make decisions about any or all of your personal welfare matters, including healthcare matters. This could involve some significant decisions, such as:

  • giving or refusing consent to particular types of health care, including medical treatment decisions; or
  • whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.

You may wish your Attorney(s) to have the power to make decisions about ‘life-sustaining treatment’, if you do then you have to expressly give your chosen Attorney(s) the power to make such decisions.

You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. It is up to you which of these decisions you want to allow your Attorney to make.

Lasting Power of Attorney - Property & Financial

Property & Financial

A Property and Financial Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more persons you trust or a professional such as a Trust Corporation (your Attorney’s) to make decisions and take appropriate actions on your behalf regarding your property and financial affairs.

Your Attorney or Attorney’s can manage your finances and property whilst you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income. This might be for lots of reasons: you might find it difficult to get about or be housebound or may find talking on the telephone difficult, or you might be working or living abroad for long periods of time.

You can also give your Attorneys power to manage your digital assets and authority to invest in stocks and shares as well as other investment funds on your behalf – this could be with or without the help of an Independent Financial Advisor, depending on your wishes.

You can decide what power and the extent of the power to give your Attorney(s) when making decisions about any or all of your property and affairs matters. This could include paying your bills, collecting your benefits or selling your house.

You can choose to appoint the same Attorney’s for both types of Lasting Power of Attorney, or you can appoint different ones for each.  You can also appoint replacement Attorneys who can act if the event that your original Attorneys are unable to.

What happens if I don’t make a Lasting Power of Attorney?

A deputyship order is necessary if you do lose mental capacity and have not made a Lasting Power of Attorney.
This means:

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You have less control over who will be your Attorney

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The appointed deputy may be a stranger and this stranger will have the authority to deal with your affairs

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Deputies incur higher court fees and often incur annual fees

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The Court of Protection holds much of the money with deputyships (With a Lasting Power of Attorney Property and Financial Affairs your Attorney will manage your funds)

IMPORTANT NOTE!

Lasting Powers of Attorney have to be drafted whilst you have mental capacity. If you do not have an LPA and you later lose capacity then it is too late and a deputy will have to be appointed. The application is decided by the Court of Protection and generally takes 6-9 months. During this time your accounts can not be accessed by your loved ones to pay your liabilities.

Do not leave this until it is too late!

Best interests

Lasting Power of Attorney Best Interests - MGF Wills

There is a strict requirement on the attorneys to act in the best interests of the donor. An LPA does not give the donor any license to do as they please. In terms of gifts, the attorneys can only make usual birthday and Christmas gifts, and possibly anniversary gifts if these are normal for a couple. Any larger gifts require the consent of the Office of the Public Guardian.

The Office of the Public Guardian, which works alongside the Court of Protection, helps to safeguard the best interests of the donor.

After you have made your Lasting Power of Attorney, it is important to consider the safe storage of it. Only the original copy will be accepted and therefore, it is extremely important to protect it from certain risks, for example, fire, flood, loss and theft to name but a few.  One place you should never keep an original LPA is at home. If you have a fire, flood or burglary, you risk losing them. If your LPA is damaged in any way, then they may not be accepted. You must keep your LPA in a secure place; however that place must be easily accessible when the document is needed! MGF Wills & Estate planning work with the National Will Safe. The National Will Safe is a complete document storage solution that solves all of the problems of protecting important legal documents, for a small annual fee. More information can be provided should you require it.

Lasting Power of Attorney Storage - MGF Wills
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Frequently asked questions

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that lets you choose people you trust to act on your behalf. If anything happens in the future that means you can’t make important decisions, they’ll be able to act with your best interests at heart.

There are two different types of lasting power of attorney:

  1. Property & Financial – this covers decisions about your home and how your money is managed
  2. Health & Welfare  – this covers decisions about your health, lifestyle and medical treatments
What is the difference between a Will and a Lasting Power of Attorney?

Your Will sets out what you want to happen to your accounts and property after you die, and it also appoints executors to take responsibility for those things for you.

A Lasting Power of Attorney sets out the instructions you want people to follow while you’re still alive, in case you can’t make decisions for yourself. These people are called your “Attorneys”.

Who can you choose as your Attorneys?

Your Attorneys should be people over 18 who you trust to act in your best interests, such as:

  • Your husband, wife or partner
  • Your children, if they’re over 18
  • Your brothers and sisters

You can choose up to four attorneys if you wish, but most people appoint two along with a couple of backups. You can also choose different people to look after your health and finances, which can be helpful if you think these decisions are better-suited to particular people.

What happens if I don’t make a Lasting Power if Attorney?

If you have an accident or illness that means you can’t look after your affairs anymore, your next of kin can’t automatically make decisions for you unless you have a Lasting Power of Attorney.

If your family wanted to act on your behalf without one, they’d need to apply to become a deputy, which is a long and expensive legal process that can cost thousands of pounds and usually takes between 9 and 12 months.

What can I include in a Lasting Power of Attorney?

Your lasting power of attorney should include legal instructions about your health and finances, such as:

  • My Attorneys must not sell my home unless, in my doctor’s opinion, I can’t live independently anymore
  • My Attorneys must continue donating to charities I’ve supported or have a standing order with

It can also include some non-legal guidance for your Attorneys. These are designed to help them make decisions for you, and can include things like:

  • I’d like to be cared for in my own home for as long as possible
  • I’d like to spend time outdoors at least once a day
How must my Attorneys act for me?
  • Your Attorneys must assume that you can make your own decisions unless they have established that you cannot.
  • They must help you to make as many decisions for yourself as they can.
  • They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been made without success.
  • They must not treat you as unable to make a decision simply because you make an unwise decision.
  • They must act in your best interests at all times when you are unable to make decisions for yourself.
  • Before your Attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
Can I restrict my Attorneys’ powers?

It is possible within the Lasting Power of Attorney document to place restrictions on how your Attorneys act for you. For example, you may wish not to give your Attorney authority over some of your assets. However, this is uncommon because, as your Attorney should be someone you trust wholeheartedly, to impose restrictions in the majority of cases would seem unnecessary.

When should I make a Lasting Power of Attorney?

It’s never too early to protect your future, so you should make a Lasting Power of Attorney as soon as you know what instructions you’d like your family to follow. For most people, this is a natural next step after making a Will.

Can I have both a Property and Affairs LPA and Health and Welfare LPA and would my Attorneys have to be the same?

You can have one or both types of LPA. They are independent of each other and so you could appoint different Attorneys if you wished.

Who can be an Attorney?

Anyone over the age of 18 can be an Attorney. It is usual for Donors to appoint close family members as their Attorneys. However, Donors also frequently choose to appoint others such as friends or a professional either jointly with family members, on their own, or as replacements.

When can an Attorney act?

An Attorney only has authority to act when the Lasting Power of Attorney is registered at the Office of the Public Guardian. An Attorney under a Health and Welfare power can only make decisions when the Donor is unable to do so because they are no longer capable.

How many Attorneys can I have?

There is no limit on the number of Attorneys you can have. The number of Attorneys you would be advised to have would depend on your individual circumstances. For some people, having one Attorney may be sufficient, but for others it may be the case that three or four Attorneys may be more suitable.

Can my Attorneys put me into a Nursing Home?

Attorneys under a Health and Welfare Lasting Power of Attorney can decide to place you into residential accommodation providing, in all the circumstances, they are satisfied that it would be in your best interests. Attorneys under a property and financial affairs Lasting Power of Attorney cannot, although they do have the power to use your funds to fund any care, whether this is administered at your home or in a care home.

Can my Attorneys sell my home?

Attorneys can only sell your house if you own the property in your sole name. If you own the property jointly then they would have to liaise with the other owners. If the Attorney is also the co-owner (e.g. a husband appointing his wife as his attorney) then the Attorney alone could not sell the house and a trustee would need to be appointed (at which point you should obtain appropriate legal advice).

Do I need a replacement Attorney?

Replacement Attorneys may be beneficial to you as they offer the chance of succession if your original Attorneys die before you or become unable to perform their duties. Certainly, if only one original Attorney is to be appointed, having a replacement would be advisable. It is not mandatory for you to have a replacement Attorney should you not wish to do so.

When can I register my Lasting Power of Attorney?

You can register your Lasting Power of Attorney as soon as it is properly executed. There can be a significant time delay between sending off the documents to be registered and receiving the registered Lasting Power of Attorney. Accordingly, we advise clients to register the Lasting Power of Attorney before it is needed so as to avoid any inconvenience later – for example if a Donor suffers a stroke and loses capacity ‘overnight’, it may be necessary for the Attorneys to act immediately to manage the Donor’s finances, but if the power has not been registered they will be forced to wait before they can do anything.

Or if you’d prefer, you can call us directly on: 01252 26 88 62 →

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