Competitive fees, fast turnaround, highly experienced lawyers in London. We are able to advise at short notice and at fixed costs as to the pros and cons of a lasting power of attorney.
If you are considering whether or not a power of attorney is necessary either for your own personal needs and peace of mind or for a relative who is perhaps elderly or where there are concerns about mental capacity, please contact us for an initial free telephone consultation.Our main office is in Edgware, North London but we also have an office in Central London..
There are a number of different types of power of attorney, as described below, but in simple terms, a power of attorney is a legal document whereby a person (the donor) grants legal authority to one or more other people to represent him or her either for general legal matters or in a restricted manner (in terms of what types of matters they can act or for time periods or both).
Life is full of uncertainties and it is sensible idea to have plans in place such that people you trust can represent you should something go wrong, and this is one reason to have a power of attorney in place, but other common situations are:
A general power of attorney is commonly used in circumstances where the donor needs assistance over a short period of time, for example if abroad but with legal business and documents that need signing in his or her absence, or for limited tasks perhaps, such as for collecting a pension.
More than one attorney can be appointed, as it is worth considering that if only one is appointed, that person may fall ill, and there can be added security in having 2 attorneys, such that each will have a duty to check that the other is complying with the instructions and not overstepping any mandate or acting incorrectly.
There is no need to register this type of power of attorney, it can be revoked with less formality than the alternative described below, and it will automatically become void if the donor becomes mentally incapacitated or has died.
An LPA allows you to appoint another person to manage your affairs if you become unable to do so. The person you appoint is called your Attorney and their role is to make the decisions that you would have made if you were able to.
You can formally appoint a friend, relative or professional to hold a Lasting Power of Attorney that will allow them to act on your behalf.
Lasting Powers of Attorney (LPA) came into effect on 1st October 2007 and replaced Enduring Powers of Attorney.
Hopefully you will never need to use your LPA, but preparing one is a way of making sure that, in the event of permanent or temporary mental incapacity, someone of your own choice will be able to represent you. If you do not have an LPA and you are not capable of making your own decisions, an application will have to be made to the Court of Protection to appoint somebody with authority to handle your affairs. This is a time consuming and expensive application.
Making an LPA allows you to appoint someone you trust to make decisions on your behalf.
There are 2 types of LPA: Property and Financial Affairs or health and Welfare.
An Attorney’s role under a Property and Affairs LPA can include collecting benefits, paying bills and expenses, managing bank accounts, buying and selling property and submitting tax returns.
An Attorney’s role under a Welfare LPA can include making decisions as to residential and nursing care and consenting to health care decisions.
You can limit the powers that an Attorney has and, if you want, include guidance to help the Attorney in making their decisions. You should appoint someone you trust and in whom you have complete confidence.
Your Attorney must be aged over 18 and not bankrupt. You can appoint more that one Attorney so that both Attorneys have to act and make decisions together.
An LPA must be registered with the Office of the Public Guardian before it can be used. Once registered, a Property and Welfare LPA can be used immediately but a Welfare LPA can only be used when you are not mentally capable of making your own decisions.
The elements of an LPA and when it can be used
When making an LPA you can appoint one or more persons to act as your attorney. These are usually the closest people to you who you trust to manage your affairs or make decisions about your health.
Jointly/Jointly and severally
You can appoint your attorneys, if there are more than one, to either act jointly, whereby all decisions must be made together or jointly and severally allowing them to each act alone.
You can also restrict your LPA to be used by your attorneys for example ONLY should you lose mental capacity. It can however be left unrestricted, if for example you would like your attorneys to help you with your affairs immediately (after registration). This is very popular with older clients whose children assist them with their financial affairs to make things easier for them. It does not take any power away from the individual making the LPA, they can still manage their own affairs, it simply means additional people can help whenever they might wish them to do so.
Once you have decided who to appoint and how you wish them to act the LPA document itself must be completed. It must include your details and those of your attorney/s as well as those of a Certificate Provider and/or persons to be notified.
It must be established that you are mentally capable to make a Lasting Power of Attorney and that you fully understand what it does and how it works. A Certificate Provider therefore must be satisfied of this and will then sign the relevant pages confirming the same. A Certificate Provider can be a person who has known you for at least 2 years and as more than simply an acquaintance or can be a professional with the relevant skills to make such an assessment, for example your solicitor or GP.
When preparing LPA’s we offer the service of Certificate Provider as part of the matter.
Person to be notified
So as to protect people making LPA’s it is a requirement that up to 5 persons should be notified of their intention to make an LPA. These people should be close family or friends who know the person well enough to be in a position to object to the registration of the LPA should they feel the person is being forced into it for example.
These persons simply receive a notice of the donor’s intention to make an LPA with instructions on the notice of how they can object to the Office of the Public Guardian should they need to do so. If they are fully satisfied and have no grounds to object they must simply do nothing and the registration process will continue uninterrupted.
Register or not?
You can register your LPA straight away and have peace of mind in knowing that it can be used as soon as necessary. Alternatively, you can prepare your LPA and hold on to it. It can then be registered at a later date. An unregistered LPA does not give the Attorney any legal power.
You can also revoke an LPA at any time, provided that you have the capacity to do so.
You do not have to seek legal advice but an LPA is a powerful and important legal document and you may wish to seek advice from a legal adviser with experience of preparing them. There will also be a Court fee payable if you decide to register your LPA straight away.
If you need legal advice on or an experienced lawyer to draft a power of attorney, either a general or lasting power, please do get in contact.