Lasting Powers of Attorney: Plan ahead whilst you can
by Sue Adams, 06 February 2016
According to research from the Alzheimer’s Society 1 in 6 people over the age of 80 in the UK have some form of dementia.
Many assume that, should the worst happen, their family can just walk into their bank and pay for their care, as ‘next of kin’. Sadly this simply is not the case. Without a Lasting Power of Attorney (Property & Affairs) in place, family members will be left with no alternative but to apply to the court for a deputy order, which can be a long and costly process.
What is a Lasting Power of Attorney (Property & Affairs)?
A Lasting Power of Attorney (Property and Financial Affairs) – or “LPA” – is a legal document in which you appoint someone, known as an attorney, to make financial decisions on your behalf should you ever need them to. The person making the LPA is known as the donor and by making an LPA they are giving the attorney a legal right and the power to act at any time when the donor no longer wishes to make financial decisions on their own or is mentally incapable of doing so.
When appointing an attorney it is important to ensure that the person(s) you are appointing is over the age of 18, is mentally capable and is not bankrupt. Outside these rules, you may appoint; family members, friends or even a trusted professional person such as a solicitor to be your attorney.
Why make an LPA?
An LPA is an extremely useful tool when carefully created. In today’s society, individuals are a lot more aware of illnesses such as dementia and the obstacles one may encounter as one gets older. For this reason it is good to know that you have appointed somebody that you can trust to manage your affairs for you should you ever need them to.
When creating an LPA you are given the opportunity to provide guidance to your attorney as to how they should use their powers and the decisions you want made on your behalf if you lose mental capacity. It is important to note however that this guidance is not binding upon the attorney. This is why it is extremely important to appoint somebody that you really trust as you are granting them wide powers over your finances. It is also possible to limit an attorney’s power within an LPA, prohibiting them from undertaking a certain task or limiting their decision making powers.
When should I make an LPA?
There is never a right or wrong time to make an LPA, but an LPA must be registered before the attorney can act. It can have conditions attached to its registration, such as the LPA can only be registered if the donor lacks mental capacity. Therefore there is no reason to refrain from making an LPA for fear of the attorney abusing their power.
An LPA can be made at any point in a person’s life, which allows you to be prepared as far in advance as you feel necessary. If you lose mental capacity without having an LPA which is capable of registration then the court will appoint a deputy to look after and manage your affairs. This means that you may not have the choice you would like in who undertakes this role and appointing a deputy also involves greater formality and expense.
How do I make an LPA?
In order to make an LPA, you must submit a form which your solicitor can help with. It is also necessary to obtain a certificate from an independent person, who can be somebody who has known you for two years or a professional such as a doctor or solicitor. The certificate provider must certify that you are not being put under pressure to make an LPA and that you understand how the LPA works.
How long will it take?
The process is surprisingly straightforward, starting with an initial meeting of around half an hour to discuss your instructions. Draft documents are then sent out for you to read through and consider, finally a meeting to go through and sign. Once everyone has been signed then the application is made with the court. It really is that simple.
So make time to plan ahead now – avoid leaving a mess for your loved ones!
If you require any further information on this, then please do not hesitate to contact Sue Adams, a Solicitor, Partner and Head of the Private Client team specialising in Wills, Lasting Powers of Attorney and Grants of Probate on 01202 204561 or alternatively at firstname.lastname@example.org.