How to provide for someone to look after your affairs if you become unwell
As the COVID-19 pandemic has highlighted, no-one knows what the future may hold.
Whilst it is always a good idea to let your family or close friends know your wishes, this is not legally binding. By making a Lasting Power of Attorney (often referred to as an LPA) you can make sure you know who will be making decisions for you and looking after your affairs if you are unable to do this for yourself, whether due to mental health or physical incapacity.
What is a Lasting Power of Attorney?
A Power of Attorney is a legal document by which a person (or persons) is appointed to make decisions on behalf or another. The powers given under an ordinary Power of Attorney can only be exercised whilst the person giving the power (the Donor) has mental capacity.
In contrast, a Lasting Power of Attorney continues to have effect should the Donor lose mental capacity. It is a vital safeguard against the problems which can arise from the loss of mental capacity, however caused.
Who can make a Lasting Power of Attorney and who should be appointed?
Provided you are aged 18 or over, solvent and have mental capacity, you can make a Lasting Power of Attorney. You appoint an Attorney or Attorneys who you trust, are willing to act as such and have the appropriate skills to make decisions on your behalf. These can be family, friends, colleagues or professionals, e.g. a solicitor or accountant. You can provide for two or more Attorneys to act together, separately or a combination and you can include instructions or guidance. You may wish to appoint a replacement Attorney in case your original Attorney is unable to act. The powers given under a Lasting Power of Attorney remain in effect until it is revoked by the Donor revokes or upon the Donor’s death.
Does giving a Lasting Power of Attorney affect your ability to make decisions?
No. The appointment of an attorney does not take away your ability to make decisions for yourself and you should continue to deal with your own affairs as normal, unless you specifically ask your Attorney to take over, or your mental capacity diminishes. The Attorney is under a duty to take over should you lose mental capacity.
The powers given under a Lasting Power of Attorney can only be exercised once the document has been registered with the Office of the Public Guardian, in accordance with its requirements. Registration can take several weeks, and it is advisable to apply for registration as soon as possible to prevent delays at a time when the powers may have to be exercised.
What sort of things do Lasting Powers of Attorney cover?
There are two types of Lasting Powers of Attorney: Property and Financial Affairs and Health and Welfare. You can appoint different Attorneys for each, and they provide for your Attorney to deal with, for example:
Property and Financial Affairs:
- Selling and buying property
- Paying the mortgage
- Arranging property repairs
- Paying bills
- Investing money
- Dealing with the bank
- Dealing with HMRC
Health and Welfare:
- Where you should live
- Your medical care
- Who you should have contact with
- What you should eat
- What kind of social activities you should take part in
Who has to sign the document?
You will have to sign the Lasting Power of Attorney and so will your Attorney/s and any replacement Attorney. It also has to be signed by an independent person to confirm that you have the mental capacity to give the powers and to sign the document. Each signature has to be witnessed by an independent person, but it is not necessary for the same person to witness all the signatures.
During the COVID-19 social distancing restrictions, it may be difficult to find someone who is prepared to act as a witness, but there are ways that this can be correctly done whilst still maintaining social distancing. For example, by watching through a window or over the garden fence. We can explain what the requirements are and how to deal with them and welcome any questions you may have.
What happens when there is no Lasting Power of Attorney?
In the event of loss of mental capacity, the Office of the Public Guardian will appoint someone to look after your financial and property affairs (a Deputy), but there is no guarantee that this will be the same person as you would have chosen for yourself and it will not automatically be your spouse or civil partner.
A Donor has to operate under strict guidelines and report to the Office of the Public Guardian. They may not be able to implement your specific wishes. The process of appointment and the administration or your affairs is more complex and costly compared with the making, registration and administration of a Lasting Power of Attorney.
How much will it cost to make and register a Lasting Power of Attorney?
Our fixed charges: Per Individual Per Couple
One LPA (either type) £325.00 + VAT £475.00 + VAT
Both types £475.00 + VAT £850.00 + VAT
We are pleased to offer a discount to Blue Light Cardholders
The Office of the Public Guardian charges a registration fee of £82 for each Lasting Power of Attorney. In some circumstances, this may be reduced or exempted.
At Linnitts we can advise you on who would be a suitable Attorney, guide you through the process of appointment and ensure the formalities of appointment and registration are correctly dealt with.
Wills
As an Attorney’s power ends when you die, it would be wise to consider making a Will or reviewing your existing Will at the same time as making a Lasting Power of Attorney, to ensure that your estate is dealt with by the person or persons you choose.
Linnitts can advise and help you with this.
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