Lasting Powers of Attorney: Do I need them?
Posted on 26th July 2023 at 10:34
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to nominate someone you trust to make decisions for you and/or act on your behalf if you are no longer able/willing to make your own decisions.
Types of LPA
There are two types of LPA:
1. For Property and Finances
2. For Health and Welfare
Lasting Power of Attorney for Property & Finances
A Lasting Power of Attorney for Property and Finances is, as the name suggests, a document which lets you (the donor) nominate trusted people (attorney’s) to act on your behalf regarding all decisions which relate to your property and finances.
Once registered, this document can be used by your attorneys straight away – even if you still have capacity. (With your consent of course). The benefit of this is that if you do not feel up to going out to the bank, you could ask your attorney to pop in for you. This could be useful in the winter or if your mobility is poor.
Under a Property and Finance LPA an attorney would be able to assist you with the following tasks; (not an exhaustive list!)
• Banking – withdrawing cash, speaking to the bank either in person or over the phone regarding your finances.
• Utilities – Paying a utility bill or speaking with the utility providers in the event there is an issue to be resolved.
• Selling Property- an attorney can sign the documentation required to facilitate the sale of a property on your behalf.
• Investments – an attorney can make investment decisions on your behalf.
An attorney cannot use the LPA in order to make or change your Will regardless as to whether you have mental capacity or not.
You also have the option to note any preferences you have or any instructions that you would like your attorneys to follow in the event that you do lose capacity. For example, this could be something like “I would like to gift the British Heart Foundation £50 a month for as long as it is financially viable for me to do so.” These instructions work both ways and a you could specify that you do not wish your attorneys to do, for example “I do not wish my money to be invested outside of the UK.”
Lasting Power of Attorney for Health and Welfare
With a Lasting Power of Attorney for Heath and Welfare in place, your trusted attorneys can make decisions on your behalf regarding life sustaining treatment. When providing medical treatment medical practitioners have a duty to act in your best interests. With a health and welfare LPA in place, GP’s and other medical professionals can take instructions from your attorneys as to what treatments you would be happy (or not happy) to receive.
A health and welfare LPA would also give your attorneys a greater involvement should a decision need to be made about which care home you should live in.
It is important to note that the LPA for health and welfare only comes into effect once you have lost capacity.
Do I need LPA’s?
Everyone should put in place LPAS! It is a misconception that only the older generation need LPAS.
LPAS should be viewed in the same way as an insurance policy – you hope you’ll never need it, but in the event you do lose capacity, you have the paperwork all ready to go and your chosen attorney’s can step up to their role.
If you were abroad and there was a problem with your home – a burst pipe for instance, would you want to wait until your return for the issue to be rectified? Or would you want a trusted person to be able to contact the insurance company and deal with the issue in your absence?
With a Property and Finance LPA, your attorney could have the burst pipe issue resolved straight away and you wouldn’t even need to cut your holiday short!
How many attorney’s can I have?
You can have as many attorney’s as you like, however we would advise that between 2 and 4 attorneys is ideal.
If you only have 1 attorney, if they were to predecease you, and you had not appointed a replacement, the LPA would need to be redrafted to appoint someone else. That is assuming that you have the mental capacity in order to make a new LPA. In the event you no longer have capacity, then this is a bigger problem.
Where you wish to appoint more than one attorney, you need to consider whether you wish them to make all decisions jointly, or whether they are able to make some decisions alone.
Who can make an LPA?
In order to make an LPA you must be over the age of 18 and still have mental capacity.
Once you lose capacity, you are no longer able to make an LPA and in order for a person to be able to make decisions on your behalf, that person would need to be appointed by the Court Of Protection under a Deputyship order.
Deputyships are more expensive, more time consuming both to obtain, and in terms of the onus that is put on the person who is appointed as your deputy under the Court Order.
Do I need a solicitor to help me make an LPA?
No. You don’t need a solicitor to assist you with the preparation and registration of an LPA, in the same way that you don’t “need” a hairdresser to do your hair!
Given the nature of the power granted by an LPA, and the amount of information to consider when making them, it is a good idea to instruct a solicitor to assist you. The Office of the Public Guardian (who deal with registration of LPA’s and supervision of attorney’s) do charge a registration fee. In the event your application for the LPA is incorrect or has mistakes in it, your application fee will still be charged by the Office of the Public Guardian and will not be refunded to you. In the event you do have to make a repeat application, you would need to pay the fee again in order for your application to be registered.
By instructing a solicitor to prepare and deal with the registration for you, you can be sure that you have considered all the necessary points and that your application will be correctly drafted with no undue delays and expense caused by paperwork needing to be amended and resubmitted.
Registration fees and timescales
The Office of the Public Guardian (OPG) charge a registration fee of £82 per document. There are some reductions/exemptions for those on a low income. This involves submitting evidence of your income to the OPG.
Currently, the timescale for registration of the LPA is approximately 22 weeks.
I’ve heard them called EPA’s – are they the same?
EPA’s can no longer be made as they were replaced by LPAS in October 2007. Whilst an EPA only covers decisions relating to your property and finances, as long as it was made and signed before 1 October 2007, an EPA will still be valid.
For further information regarding making LPA’s please give us a call on 0113 200 74 80 and our Private Client team will be happy to assist you.
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