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Prudent Planning for the future
The benefits of creating Lasting Powers of Attorney are widely recognised. It gives you the opportunity to decide who you want to deal with your affairs during your lifetime if you become unable to manage them yourself.
A lasting power of attorney (LPA) is the legal appointment of someone who you trust (the attorney) to make decisions on your behalf if, at some point in the future, you are either unable to do so yourself or simply need help with your affairs in your later years.
The appointment will be specific to you. You can decide who will have the power to control your affairs and the precise limits of that power.
Who can make an LPA?
You will be able to make an LPA if you are 18 years or over, and have the necessary capacity. To prevent fraud a certificate of fitness is required, which must be signed by a suitably qualified person confirming that you fully understand what is involved in making an LPA, its nature and consequences, and that no fraud or undue influence has been used.
Who else is involved?
Attorney – You can appoint a relative, a friend, a professional person or anyone willing to act for you, providing they are aged 18 years and over and not Bankrupt. It is essential to appoint someone you trust to make decisions, as you would make them yourself. Your attorney must make decisions in your best interests and adhere to the guidelines laid down in the MCA 2005. If you appoint a professional person they will charge for their services.
You may wish to appoint more than one attorney and in this case, you can appoint them to act as follows:
Jointly; or
Jointly and severally; or
Jointly for some decisions and jointly and severally for other decisions.
We suggest that you appoint your attorneys jointly and severally.
Replacement Attorney
You can also appoint a replacement attorney or attorneys to act in place of an attorney who is no longer able to act or does not wish to make decisions on your behalf.
Person(s) to be notified
You can choose between 1 and 5 persons to be notified when your LPA’s are going for registration to the Office of the Public Guardian. These people act as a safeguard for you as they can object to the registration of your LPA’s if they know of reasons or circumstances that if your LPA’s were registered it would not be in your best interests.
If you do not choose anyone to be notified you will be required to have 2 certificate providers.
Certificate Providers
This is an independent person (not a family member) who is able to confirm that you understand the significance of your LPA’s. They must have known you well for at least 2 years or have relevant professional skills to enable them to confirm that you understand the significance of your LPA. They also need to certify that no undue pressure or fraud is involved in the making of the LPA. Our consultants are trained for the provision of this service.
Your attorney(s) or replacement attorney(s) cannot act as a certificate provider.
A person to be notified can act as a certificate provider.
Independent Witnesses
The people who see your LPA being signed as who then sign themselves that it was signed in their presence. When you sign at the end of Part A, your signature must be witnessed. Your certificate provider can act as a witness. Your attorneys and replacement attorneys cannot act as your witness in Part A.
When your attorney(s) sign Part C their signature(s) must be witnessed. Another attorney, your replacement attorney, or a certificate provider can also act as a witness to the attorneys signature.
When can it be used and my attorneys have the power to act on my behalf?
After LPA document has been signed by all parties, the LPA has to be registered with the Office of the Public Guardian before it can be used and the attorneys have the power to act. Registration can take place at any time after you have created the LPA and there will be an application fee for registration payable to the OPG.
Call us to check when it is appropriate to register your LPA’s.
Property and Affairs LPA
A property and affairs LPA will give power to your chosen attorney(s) to make decisions on your behalf relating to all your property and financial affairs. The attorney(s) will be able to do anything that you can do now but they will only be able to make decisions within the scope of the powers you give them. If you are able to give it, they must seek your approval to everything they do. Such powers may include:
Opening, closing or operating any account containing money
Claiming and receiving on your behalf, for example, all pensions, benefits, allowances, services, financial contributions, repayments, rebates to which you may be entitled
Making all tax returns and adjusting and settling any claim for tax
Paying your household expenses
Buying, leasing, selling and otherwise dealing with any interest in property
Making gifts on your behalf, including any limits on the size of such gifts or the people that receive them, subject to any restrictions
Paying for private medical care and residential care costs.
The list above is just to give you examples of the types of powers that are included in a property and affairs LPA and is not intended to be exhaustive.
A property and affairs LPA can be used from the moment it is registered, whether or not you have the capacity, subject to any restrictions or conditions you have made. If wish your attorney(s) to act on a temporary basis, this is possible, and it must be made known to all parties and that you may wish to resume handling your affairs in the future.
Personal Welfare LPA
A personal welfare LPA will give power to your chosen attorney(s) to make decisions about your health and personal welfare, such as where you should live and your day to daycare, consenting to or refusing medical examinations and treatment, arrangements regarding community care services, and whether you would like to take part in social, leisure and educational activities. You can also authorise your attorney(s) to have access to personal and confidential information.
In particular, you can, if you wish, permit your attorney(s) to consent to or refuse life-sustaining treatment.
It is important to note that a personal welfare LPA will only take effect when you lack the capacity to make decisions for yourself. However, your attorneys still have a duty to act in your best interests if your health & welfare LPA has been registered.
Safeguards
An LPA is a very powerful document. Your attorney(s) will have the same control as you have over your money, savings, investments and property. You may, therefore, wish to restrict the power you give to your attorney(s).
For example, you may wish the LPA to be used only if you lack capacity and require medical evidence to that effect, or you may wish to restrict the power over certain affairs. The options are endless.
There are safeguards built into the LPA document itself:
The document must be registered with the Office of the Public Guardian before use. A register of LPA’s is kept by the court and they can be asked to look into what any attorney does if someone believes they might not be acting in that person’s best interests. Any serious problems will be sent to a special court called the Court of Protection, which has the power to remove the attorney.
The certificate of fitness must be submitted, as referred to earlier.
You can select people to be notified of any application to register the document which will give them the opportunity to object should they believe that the application is not in your best interests.
Most importantly, your attorney must have regard to a Code of Practice set out in the Mental Capacity Act 2005 which provides guidance on the law governing LPA’s. This code dictates that your attorneys must consult with you and obtain your approval for everything they do, so long as you have the capacity, anything they do must be in your best interest.
What happens if you do not make a lasting power of attorney?
Should you lose capacity at any point during your lifetime, unless you have appointed an attorney, then someone will have to apply to the Court of Protection to be appointed as your deputy.
This is a long, expensive and complicated procedure and most importantly you do not get to choose who will act for you.
Email us at: wills@allwillsandtrusts.co.uk
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