What are the two types of Lasting Power of Attorney?

The two types of power of attorney are ‘Health and Welfare’ and ‘Property and Financial’. The Health and Welfare power of attorney means your attorneys can make decisions about things like your daily routine, medical care, moving into a care home or life-sustaining treatment. The Property and Financial power of attorney enables attorneys to carry out activities such as paying bills, collecting benefits and pension funds and selling your home.

When might you need to think about Powers of Attorney?

A lot of people associate powers of attorney with dementia and other illnesses where people lose mental capacity and can’t make their own decisions. But a person can lose capacity for a number of reasons that might either be temporary or permanent. For example, you may suffer a brain injury, you’ve had a stroke or you’re in a coma. Another situation is where alcohol or drug misuse, or the side effects of medical treatment, can affect someone’s ability to make decisions. So it’s not just relevant to old age and illnesses associated with old age. Unfortunately,  anything can happen to anyone at any time.

What’s the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?

Enduring Power of Attorney is the old process before LPAs came into existence on 1 October 2007. Enduring Powers of Attorney (EPAs) only applied to financial affairs and had to be registered at the onset of loss of capacity. You can no longer prepare new EPAs, but if you already have an Enduring Power of Attorney that was set up before the law changed in 2007, it is still valid. Many changes were made to powers of attorney in 2007, after the Mental Capacity Act was introduced. Lasting Powers of Attorney afford greater protection and flexibility – and obviously allows you to also appoint attorneys to act on your behalf in your health and welfare decisions as well as your financial decisions.

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what is the role of an attorney?

The main role of an attorney is to help the person to make their own decisions where possible. If they’re unable to, the attorneys are responsible for acting and making decisions in your best interests. Attorneys have to act in line with the Mental Capacity Act, and there are rules and codes of practice about how you make decisions for someone who has lost capacity.

But essentially attorneys have a duty to make decisions in the best interest of the person who’s lost capacity.

who can be an attorney?

Anybody can be an attorney as long as they are capable of making decisions themselves. They must have mental capacity themselves and be aged 18 or over.

You can choose more than one person and they can act either jointly, which means that they must make all the decisions together; or they can act jointly and severally, which means that they can either act together or independently. Powers of Attorney also give you the ability to appoint replacement attorneys if for any reason, the original attorneys are unable to act.

what can an attorney not do?

Clearly attorneys can’t do anything that’s against the law. That will include anything related to assisted suicide, euthanasia etc. Attorneys must always act solely in the best interests of the donor, so they can’t make decisions that are in the best interests of anyone else. Although the powers that attorneys have are fairly wide, there are some statutory restrictions.

For example, attorneys can’t change a person’s will. They can’t consent to a marriage or divorce or vote on a donor’s behalf. There are also some strict limits on what gifts can be made under the power of attorney. So an attorney can give a gift for occasions such as weddings or birthdays, or they can make gifts to a charity which the donor regularly supports, but it must be reasonable figures that take account of the donor’s financial position at that time. Large gifts or major tax planning decisions have to go through the Court of Protection.

Attorneys that breach their position face real world consequences. You can be prosecuted and you may be liable to refund money that shouldn’t have been spent, for example.

when should you create a lasting power of attorney?

People often think that they can just arrange a Power of Attorney when they start to become ill, but the important thing is that you can only set it up while you have mental capacity. Once you’ve lost capacity, it’s too late and the process is completely different.

Preparing a Power of Attorney while you are still well and healthy allows you to plan ahead. It means you can give the right people the legal authority to make decisions for you.

In many ways it’s like a will. The more you can prepare for the unexpected, the better. When we help our clients create Lasting Powers of Attorney we try to future-proof them as much as possible. We consider possible scenarios and appoint as many attorneys as we can so that, if you were involved in a car accident or become seriously ill, someone can manage your affairs.

what happens if i don’t have a lasting power of attorney?

If you lose capacity to make your own decisions and you don’t have a valid power of attorney, then your family would make an application to the Court of Protection. The Court would determine whether you do have the capacity to make decisions and if not, they make an order to appoint a deputy to make decisions on your behalf. A deputy’s role is similar to that of an attorney.

As with Lasting Power of Attorney, there are two types of deputies: Property and Financial Affairs and Personal Welfare. However, it’s very rare for a personal welfare deputy to be appointed. The focus is normally on financial aspects.

Obviously going through a court process and having to employ solicitors to help prepare all of the information is more costly and time consuming – and ultimately you have no control over who is appointed as your deputy. So, for peace of mind, it can be much better to put a Lasting Power of Attorney in place.

how do i get a lasting power of attorney?

You can fill out LPA forms online or use paper forms. Either way, they have to be signed by the person who’s making the application. They have to be signed by your attorneys in the presence of an independent witness. A section of the form must be signed by a ‘certificate provider’ – essentially an independent judge of your mental capacity.

They attest to the fact that you fully understand what an LPA means and that no one’s forced you into making one. The certificate provider can either be someone you’ve known for at least two years or someone with relevant professional skills to assess capacity.

Once the documents have been completed, signed and witnessed, all in the correct order, they have to be registered with the Office of the Public Guardian before they can be used.

The Office of the Public Guardian is the executive agency sponsored by the Ministry of Justice that helps keep people in England and Wales in control of decisions about their health and finance.

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how much does it cost to set up lasting power of attorney?

Similar to a will, the cost varies from provider to provide depending on how involved the professional is in the process. Some professionals simply help you prepare and sign the documents and you manage the registration process yourself; while others manage the entire process, which is quite lengthy. It can take 12 to 16 weeks for documents to be registered.

Because of that, fees can vary from anywhere between £150 to £500 per document, although you may get a discount if you do both types at the same time or if you’re a couple doing both types of LPA.

The process to draft, obtain all the signatures and register the documents is time consuming and if you make any errors, the Office of the Public Guardian might reject the application. Working with a professional will help you avoid those issues and get the LPA through smoothly. Remember too that these professional fees are considerably less than the cost of going through the courts once someone has lost capacity to make decisions.

can a family member challenge a power of attorney?

If an LPA is going through the registration process, you can object to the application. How you do that depends on who you are and why you’re objecting, and you may have to provide supporting evidence.

Examples of grounds for objection include fraud, undue pressure or influence or that proposed attorneys acting against the donor’s best interests. Another reason is that the donor doesn’t actually have capacity to make an LPA.

Once an LPA has been registered and the attorneys are acting on it, and a family member suspects foul play, they can still act. They can report their concerns to the office of the Public Guardian who can investigate and if necessary, refer the matter to the Court of Protection to take further action.

can power of attorney override a will?

No. Power of Attorney is an entirely separate document. Your will protects your beneficiaries’ interests when you die, while an LPA protects your interests while you’re alive – so the documents don’t interact with each other at all.

An attorney can’t change, amend or update somebody’s will. They also can’t act under a power of attorney once a person has died, either. Sometimes, an attorney may be an executor of the will, but they are separately-defined roles.

should everyone have an lpa?

It’s a personal choice, but LPAs are certainly not just for the older generation. People could lose capacity at any time for all kinds of reasons. Covid-19 has been a prime example of how we can’t predict what might happen.

There are a lot of misconceptions about powers of attorney and that you are signing your life away. But hopefully you now see that there are strong safeguards and rules that will protect you.

To find out more about power of attorney and raise any questions, contact the team at Expression Wills for an informal chat.

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Claire has been really helpful throughout the process. She was particularly supportive in helping us decide who to appoint as guardians and trustees and gave us lots of insightful information to help us make the right decision for our family. We have been really happy with the service and would highly recommend Expression Wills.

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