Lasting Powers of Attorney
What are they and why should you consider making one?
No one wants to think that they may have difficulty managing their affairs but sometimes things happen which make dealing with your property and personal affairs difficult. Whether it is an illness, accident or generally getting older, most people have to deal with periods of incapacity during their lifetime. As people are generally living longer, more of us will have the need for help and support in our old age.
A Lasting Power of Attorney (LPA) is a legal document that lets you select one or more people to help you make legal and financial decisions. This means that you have more control over what happens to you if you can’t make decisions yourself. An LPA can give you peace of mind because you will be sure that the right people are able to look after your property and personal affairs.
If you have not made an LPA and lose the mental capacity to manage your affairs, it may be necessary for the Court of Protection to appoint a deputy to make decisions in your best interests. This involves greater formality and expense.
There are different types of LPA for financial decisions and health care decisions.
Property and Financial Affairs LPA
This financial LPA can be used to allow someone to make decisions for you even while you still have mental capacity. These decisions may include such things as buying and selling property, investing money and paying bills.
This LPA is also an important consideration if you run your own business, to ensure that it can continue to operate if you become mentally incapable. I can advise you on the requirements particular to your business to put in place the necessary safeguards.
Health and Welfare LPA
A Lasting Power of Attorney for health is different in that it only comes into effect if you have lost the capacity to make decisions for yourself. It will allow someone you trust to make decisions such as where you live, your medical care (including consenting or refusing medical treatment), what you eat and what kind of activities you should take part in.
The attorneys you choose for health and welfare may be the same attorneys who you wish to look after your property and financial affairs, or they may be different. It is important to choose someone with the right skills to make decisions about your personal welfare and I will meet with you to consider in detail your wishes. Any decision your attorneys make must be in your best interests.
You also have the opportunity to name replacement attorneys to act for you if your first named attorneys are unable to.
A Lasting Power of Attorney is only valid if you have not been put under pressure to create it, and if you have the mental capacity to understand the implications of the document.
Traditionally, clients have consulted a legal professional regarding their LPA and would have instructed that person to prepare the document. These days, however, there are now other options available, such as preparing a DIY LPA, which is either ‘off-the-shelf’ or available via an online service
The most obvious perceived benefit of preparing a DIY LPA, rather than instructing a legal professional, is primarily a financial one. The prospect of saving money in legal fees is often attractive. However, the potential risks and ramifications in preparing a DIY LPA are significant. A legal professional will guide you through all the elements carefully and, ultimately, ensure the document is accurately drafted so as to properly reflect your wishes. If, however, you choose to prepare your own DIY LPA, and it is drafted incorrectly, the ramifications can be significant. Below are examples of some of the obvious potential consequences:
Technical errors in the LPA could result in it being rejected by the Office of the Public Guardian (OPG) when the registration application is submitted, resulting in delays and possible additional costs in correcting.
A badly drafted LPA could ultimately be rejected or misinterpreted by a financial or medical institution, thereby causing disruption to the management of your affairs and distress for your loved ones. Quite apart from that, a badly drafted LPA may not in fact adequately express your wishes at all.
I will discuss your proposed LPA with you in person, ensuring you understand the purpose of the document and are not acting under the influence of anybody else. Sadly, with the introduction of DIY LPAs there is a very real risk of vulnerable people either being coerced into making an LPA they do not understand, or of somebody else simply making the application in the name of a vulnerable person who is totally unaware. Both scenarios could, quite easily, result in serious financial or other abuse further down the line.
How long does it take to get a Lasting Power of Attorney?
Once I have met with you and taken your instructions, I will prepare the LPA for your approval and signing. LPAs cannot be used until they have been registered with the Office of the Public Guardian (OPG) and I recommend that once all parties have signed the LPA, the LPA is then registered with the OPG so that it is ready for use if and when required. The registration process usually takes 10-12 weeks.
I can also visit you in the comfort of your own home at no extra cost, please get in touch.