Lasting Power of Attorney

INTRODUCTION

Nobody knows what the future holds and situations can arise, such as failing health, where we are no longer able to take care of our own affairs. 

What if you became physically or mentally unable to manage your own affairs or understand what you were doing?  How would your funds and assets be dealt with if you were completely unable to deal with things on a long term basis?  This might not have any relevance at all to your life right now, but it could be important to you in the future.

However, there is a way to prepare for such a circumstance before it is too late to do anything about it. The law allows you while capable, to determine who can intervene in your property & financial affairs in the event of your incapacity.  We at Seatons are able to obtain the appropriate forms to help you.  A Lasting Power of Attorney can be prepared by using a prescribed form which we can prepare for you.

WHAT IS A LASTING POWER OF ATTORNEY (LPA)?

An LPA is a document by which you (the donor) gives someone else (the attorney) power to make your decisions on your behalf.  There are two types of LPA – a financial LPA and a personal welfare LPA.

FINANCIAL LPA

Gives your attorney power to make financial decisions on your behalf, e.g. sell your house or write cheques on your bank accounts.

PERSONAL WELFARE LPA

Gives your attorney power to make personal welfare decisions on your behalf, e.g. which care home you should go to, what medical treatment you should have.

CHOICE OF ATTORNEY

You can choose whoever you like to act as your Attorney although it is often best to appoint more than one person, usually a relative, friend or even your Solicitor. By appointing more than one person you can reduce the risk that the Attorney’s powers will be abused.  In fact, it does make sense to have two attorneys, so that if one dies or is unable to act, the other can step into their shoes.  An Attorney has to act on your behalf and in your best interests. You can either give your Attorney general authority to act on your behalf or you may wish to place limitations or restrictions on the extent of authority. The choice is yours.

WHEN DOES AN LPA TAKE EFFECT

A Personal Welfare LPA can only take effect in the event of mental incapacity.  You can specify when you want your Financial LPA to take effect – either immediately or only in the event of mental incapacity.  If it takes effect immediately, then it can be used even if you are frail, abroad or simply unable to sign the appropriate documentation needed.  If it only takes effect in the event of mental incapacity, then the attorneys can only use the document once a doctor has certified that you are incapable of managing your affairs.

All LPAs must be registered with the Office of the Public Guardian before they can be used.

NO DELAY & HUGE COST SAVINGS

If there is no Lasting Power of Attorney in place then usually an application has to be made to the Court of Protection in London so that the Court can sort matters out. This is often an expensive and time consuming procedure. By having a Lasting Power of Attorney you can reduce the delays and save considerably on legal costs.

REGISTRATION PROCEDURE

A Lasting Power of Attorney Deed has to be registered with the Office of the Public Guardian.  This is a relatively straightforward procedure and then gives you Attorney power to sort matters out from then onwards.

FORMAT

A Lasting Power of Attorney document must be in a particular format as set out in regulations. Any alteration to that format may result in the document not being valid.

CANCELLATION

A Lasting Power of Attorney can be cancelled at any time whilst you are mentally capable.  However a Lasting Power of Attorney cannot be cancelled or revoked once it is registered, without the court’s consent.

INFLUENCE

It is important that the decision to enter into a Lasting Power of Attorney deed is your own.  You must not be influenced into entering into this document by any other person or organisation.  Sometimes people are influenced by family members or close friends.  They may make comments, statements or give assurances or promises to you about certain matters.  Do not rely on these.  Do not make a decision based on what others say.  It must be solely your own decision based on your own personal reasons.

MENTAL CAPACITY AND UNDERSTANDING

You must be mentally capable and understand exactly what you are doing.  There is a presumption of mental capacity in law.

DISCUSSION WITH DOCTOR

Anybody who is over 18 and of sound mind can make a Lasting Power of Attorney.  It will however only be valid if it expresses your genuine wishes and you must understand and approve its contents.  Great care must be taken when dealing with an elderly member of the family to ensure that the document sets out the person’s wishes.

It is always advisable to have a solicitor and/or doctor as one of the witnesses and the solicitor and/or doctor should check that the person is capable of making a Lasting Power of Attorney and that he or she understands what is written in the document.  If the doctor makes a record of the examination it may well be valuable evidence should the deed ever be challenged on the grounds of mental incapacity

This information is not meant to be a substitute for us or any other solicitors or advisors giving you comprehensive and accurate advice.

LOW COSTS

The costs of making a Lasting Power of Attorney can vary but please call us and we will give you a quote.

CONVENIENCE

Making a Lasting Power of Attorney is easy. Simply telephone these offices for an appointment and we will try to sort everything out on the one visit.