What Is a Lasting Power of Attorney? Also Known as LPA
Powers of attorney have been serving the public for centuries. It is a powerful legal document, which allows an individual to appoint a person of their own choice to look after their affairs, should they at a later stage no longer wish to make the decisions or lack the capacity to manage their affairs themselves.
Lasting Powers of Attorney For Property and Financial Affairs.
This allows the persons appointed to make decisions about paying bills, dealing with banks and investments, arranging and collecting benefits, and even selling property on behalf of the Donor
Lasting Power of Attorney for Health and Welfare.
This allows the attorneys to make decisions for the donor such as care issues where the donor lives and where the donor wishes, giving or refusing consent to life-sustaining treatment
As the name of the power suggests, (lasting), both of these powers continue to be valid even after the donor loses capacity. Once registered, a lasting power of attorney for property and Financial Affairs can be used by the attorneys at any time.
However, a lasting power of attorney for health and welfare can only be used when the donor has lost mental capacity.
Lasting Powers of Attorney have replaced Enduring Powers of Attorney in England, Scotland, and Wales, but not Northern Ireland. Enduring Power of Attorneys made prior to the 1st of October 2007 continues to be valid.
No doubt you have taken care to ensure that your assets go to the right people when you die by making it a will. If you care enough about what happens to assets when you die, then you ought to care even more about keeping them and yourself safe while you are alive.
If you were to suffer an accident and be confined to bed or hospital, contract an illness, or have a more serious accident making you permanently incapacitated, or you become mentally incapacitated as a result of old age or some other reason. Then without a lasting power of attorney in place. The only way your financial affairs can be managed is by an application by a relative or someone close to you being made to the Court of Protection for Deputyship
The application must provide personal information about themselves, their family, their own finances, and the relationship with the person they wish to help care for. Medical evidence also needs to be obtained. This process costs a considerable amount of money. It can take anything between 12 weeks and 10 months, by which time your finances could be seriously damaged. Even worse, a judge will make the final decision as to who is appointed as the deputy, and this may not be who you would have wished to manage your affairs. The appointment does not even have to be a family member.
While the Court of Protection is important to safeguard the interests of people who don’t have close friends or family, if you want your loved ones to be able to care for you and make decisions on your behalf, you should ensure that you make a Lasting Power of Attorney. While you are still able to do so.
Lasting Power of Attorney Vs Deputyship
Some of the reasons why you should make a lasting power of attorney in preference to a judge appointing a deputy to manage your affairs.
- Setting up a lasting power of attorney allows you to plan in advance the people you want to make these decisions for you, your attorneys, the decisions you want to be made on your behalf, and sample life-sustaining treatments.
- How you want your attorneys to make more decisions, for example, jointly. Once the lasting power of attorney is registered with the Office of Public Guardian. Your attorneys are able to make financial decisions on your behalf and they must follow the principles as set out in the Mental Capacity Act when making these decisions.
- Your attorneys are free to act on your behalf without involvement from the Office of Public Guardian unless a concern is raised with how the attorney is acting minimal personal details are required for both the donor and the attorney to set up the lasting power of attorney shorter timescale involved in setting up the lasting power of attorney.
You have no control over who is appointed as your deputy and this may not be who you would have wished.
There are also court fees involved and the deputy has to take out a security bond to cover their actions. This is paid annually. The amount is set out by the court. The more assets a person has, the higher the bond.
Depending on your supervision order, the court can also take a retainer.
This amount is not disclosed until your application is agreed and is again dependent on the amount of assets the person has. Supervision fees are also applied annually.
The judge will issue a deputy order setting out the extent of the powers granted to the deputy. For example, not being allowed to write cheques over £500 without the court’s permission.
Any major decisions such as selling a property require the court’s permission.
The Office of Public Guardian assesses each case and places it in a band where it will receive either a low, medium or high level of ongoing supervision.
The deputy must report to the court or the Office of Public Guardian at all times. And may have to submit annual accounts for court approval and receive periodical visits by a court visitor.
A deputy must account for every penny spent, and any requests for money must be made to the court in writing.