You may realise the importance of making a Will to deal with your estate after you die, but do you realise the importance of making a Lasting Power of Attorney to look after things whilst you are alive?
Christina Yardley, Solicitor of Nottingham law firm Actons Solicitors explains all.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is an important legal document that allows you to appoint people that you trust to look after your affairs in the event that you are not able to. This could be temporary assistance such as paying your bills during a period in hospital or time abroad, or more permanently as a result of an accident or an illness such as dementia. It will continue to be valid even if you lose mental capacity.
A person making an LPA is called a Donor, and they can appoint anybody they wish to act as their Attorney as long as they are over the age of 18 and are not bankrupt. This could include children, siblings, other family members, trusted friends or a professional such as your solicitor. It is possible to appoint more than one Attorney and they can act ‘jointly’ so all together or ‘jointly and severally’ so they may act individually.
Most importantly you can only create an LPA whilst you still have mental capacity and so I always advise clients not to delay.
Whilst you have mental capacity you can cancel your LPA if you wish to.
Types of Lasting Powers of Attorney
There are two types of LPA which consist of two separate documents; one for your Property and Affairs and one for your Health and Welfare.
The LPA for Property and Affairs deals with all financial and property matters such as accessing bank accounts, paying bills or mortgages, claiming benefits and pension allowances, buying or selling property, organising property repairs and maintenance, purchasing gifts for family or friends and donating to charities. This type of LPA can be used whilst you still retain mental capacity.
The LPA for Health and Welfare deals with your personal welfare such as where you will live dependant on your needs, your day to day care, social activities and the consent or refusal of life sustaining treatment. This type of LPA will only come into force once you have lost mental capacity.
LPAs replace the previous Enduring Powers of Attorney since a change in the law in 2007. Existing Enduring Powers of Attorney remain valid but require registering once the Donor has lost capacity.
What safeguards are there for me?
Lasting Powers of Attorney have been designed to provide greater protection for Donor’s than their predecessor Enduring Powers of Attorney.
✓✓ They have to be registered with the Courtbefore they can be used.
✓✓ A Certificate Provider such as a solicitor or doctor must confirm that the Donor understands what they are doing and is not being forced to make the document.
✓✓ The Law provides that the LPA must only be used in the donor’s best interests.
✓✓ A person of your choosing is notified about the LPA when it is registered.
Do I need one?
If you lost capacity without an LPA in place, your family or friends would be forced to make an application to the Court of Protection to appoint a Deputy to look after your affairs. Not only would you have no influence in who acted as your Deputy, but the process is very time consuming. There are also yearly fees and insurance to pay for as well as substantial court fees and legal costs.
Lasting Powers of Attorney are a vital part of ensuring you have your affairs in order. You may never need the services of your Attorney, but it provides peace of mind that you have done all you can to plan ahead for the future.
How a solicitor can help you
It is very important that you fully understand LPAs and that your Attorneys are aware of what they can and cannot do on your behalf. A solicitor will provide you and your Attorneys with easily understood and expert advice.
They will also:
✓✓ Ensure that your LPA is completed correctly and that it is registered at the Office of the Public Guardian;
✓✓ Act as your Certificate Provider if you wish them to;
✓✓ Advise you on any applicable Court Fee discounts available to you.
Christina offers free legal advice on a range of matters at our Head Office at Bradbury House 12 Shakespeare Street, Nottingham, NG1 4fQ on Wednesday afternoons between 2.30pm and 5pm. Each session is completely free, confidential and impartial. To book a session please call 0115 844 0011.