Lasting Powers of Attorney demystified - and relevant to many of us
Life Matters for Lymington with Paula from Lester Aldridge
The second in our new monthly series on those niggling legal matters to which we should attend: this month Paula Shea from Lester Aldridge de-mystifies Lasting Powers of Attorney, in Plain English.
Following last month's "Importance of a Will", this helpful Q&A about Powers of Attorney sets the scene for the next important subject to consider if we want the people we love to benefit the most (and the taxman the least!) should something happen to us.
Powers of Attorney come into play if our circumstances change: for instance if we have an accident or illness which changes our ability to make decisions for ourselves.
In this scenario we would want to know that the right people are in place, ready and willing to implement our wishes. And in this instance we stand to benefit ourselves in terms of how we live the rest of our lives.
Paula’s overriding message always, is that it’s never too soon to get our affairs in order. And it doesn’t take long nor cost very much in the scheme of things, to sort these things out and give ourselves peace of mind.
So, over to Paula!
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a document that enables you to appoint someone to make decisions on your behalf.
Are they new?
They were introduced on 1 October 2007 to replace the old Enduring Powers of Attorney (EPAs). The Government’s idea was to reduce fraud by attorneys.
I made an EPA before 1 October 2007. Is it invalid?
No – if an EPA was signed by you and your attorneys before that date, the same rules apply. It is just that you cannot make a new EPA.
I have heard that there are two types of LPA. Is this right?
Yes – a Property and Financial Affairs LPA enables you to appoint someone to act for you in relation to your financial affairs (your money and property).
A Health and Welfare LPA allows you to choose someone to make healthcare and welfare decisions for you (such as where you live), but only if you are unable to make such decisions for yourself.
You can also give your Health and Welfare attorney power to refuse or consent to life sustaining treatment on your behalf.
Who should I appoint as my attorneys, and how many do I need?
You must only appoint people you trust absolutely to act in your best interests.
If you are appointing attorneys under a Property and Financial Affairs LPA, you should also choose people who have experience in looking after money.
It is sensible to appoint at least two attorneys, in case something happens to one of them. Having two attorneys also reduces the chances of their abusing their power.
What happens if one of my attorneys dies?
If you have more than one attorney, the survivor may be able to continue to act.
An LPA also enables you to appoint substitute attorneys, who can take over from the original attorneys in certain circumstances. This is a change from EPAs which did not allow you to appoint substitutes.
Why do you say that if one attorney dies, the survivor ‘may’ be able to continue to act?
A. It depends how you have authorised your attorneys to act. You can appoint them:
• jointly, which means that they must all act together; or
• jointly and severally: in this case they can act independently of each other which may be more convenient; or
• jointly in respect of some matters and jointly and severally in respect of others.
If you appoint your attorneys to act jointly and one of them dies, the survivor(s) cannot continue to act. The power is cancelled.
How do these LPAs reduce the risk of abuse by the attorneys?
Well, first of all, you can choose people to be notified when the power is registered. If they think something is wrong, they can complain to the Court.
In addition, when you sign the power, you need someone (called a certificate provider) to confirm that you understand the nature and the scope of the power, and that you have not been forced to sign it.
Who can be a certificate provider?
Either a professional (such as a doctor or solicitor), or someone who has known you for more than two years.
You mentioned registration of the LPA?
EPAs could be used as soon as they were signed. They only had to be registered if you became mentally incapable of dealing with your own affairs.
However, LPAs cannot be used until they are registered. Once a Property and Financial Affairs LPA is registered, it can be used straight away.
A Health and Welfare LPA, however, cannot be used even if it has been registered, unless you become incapable of making decisions for yourself.
Will my family be notified of the application to register?
Not automatically. Only the people you have nominated will be notified. This again is a change from EPAs, where family members were automatically notified – you had no choice.
Can I cancel an LPA?
You can cancel an LPA (or an EPA) provided you are mentally capable of doing so.
Property and Financial Affairs LPAs and EPAs are cancelled if you or your appointed attorney become bankrupt.
I have heard that the forms are very complicated. Is this true?
It is true that the forms are longer than EPAs. There are a good many decisions that have to be made. You have to choose your attorneys, any substitutes, the persons to be notified (which is optional) and who is to act as your certificate provider.
Many people do find the guidance of an experienced solicitor to be helpful.
What about the cost?
Because of the length of the documents, it is more expensive to make an LPA than it was to make an EPA. In addition, when registering the power, there is a fee payable to the Court of £82.
Do I need a solicitor to make an LPA?
It is not essential, but the Government’s own website advises that “depending on the complexity of your property and financial affairs, it may be a good idea to get advice from a solicitor before making an LPA”.
Lester Aldridge LLP have lawyers who are specialists in Powers of Attorney and who can help you with care and understanding to get everything right.
Free consultation with Paula Shea
You need to be sure that the person with whom you're sharing your "life matters" is worthy of your trust and confidence.
Which is why Paula Shea, Partner with Lester Aldridge who looks after probate, wills and estates, is happy to offer a totally free and no commitment initial consultation. This meeting can take place in person at your home or the Lester Aldridge offices in Bournemouth, or on the phone as preferred. You can talk over the specifics of your situation with Paula, and take things from there.
Life Matters for Lymington with Paula at Lester Aldridge, August 2018