A lasting power of attorney is a legal document which lets you pick someone you trust to make decisions on your behalf, if you're unable to do so yourself.
1. What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document, which allows you to choose a person to make decisions on your behalf if you are ever unable to do so. There are two types of LPA:
Lasting Power of Attorney (Property and Affairs) - These replace the old Enduring Powers of Attorney and allow your chosen person to make decisions regarding your finances on your behalf such as: paying bills, collecting pensions and benefits, opening and closing bank accounts, buying and selling property.
Lasting Powers of Attorney (Personal Welfare) - This type of LPA has some similarities and cross over with a Living Will or Advance Directive. It allows your chosen person to make decisions about your welfare to include decisions about where you will live and the care and treatment you will receive. You can also use it to give your chosen person the authority to consent to or refuse life sustaining treatment on your behalf.
2. If I am mentally incapable of looking after my finances, my wife will automatically be able to do this, won’t she? What about my next-of-kin?
No, many people think that their husband or wife would automatically be able to deal with their bank accounts, pensions, investments (including any shares in any business you may own) and savings if they become mentally incapable but this simply is not the case. If you have not given a Property & Finance Power of Attorney to your husband or your wife then they will not have the authority to sign on your behalf without an order of the court.
Equally the law does not recognise the phrase "next-of-kin" and they would not have authority to act for you unless you appoint them or they are appointed by the court.
3. What happens if I don’t put in place a Lasting Power of Attorney and then become mentally incapable of dealing with my affairs?
In order for your family to be able to deal with your financial affairs it would be necessary to make an application for someone to be appointed as a Deputy by the Court of Protection. This may not necessarily be the person you would choose to act in this capacity. This process is more costly and longer than the preparation of a Lasting Power of Attorney and the Deputy has to account to the court for any actions taken on an annual basis.
4. My mum is becoming increasingly forgetful – what should I do?
It is important that she considers putting in place Lasting Powers of Attorney at the earliest opportunity. The person giving a Lasting Power of Attorney must be able to understand what is involved in granting this. If your mum’s condition deteriorates then she may reach the point when she no longer has the necessary capacity to grant a Lasting Power of Attorney. Do not leave it too late.
5. Can’t I wait until I become older before putting in place Lasting Powers of Attorney?
We recommend that you put in place Lasting Powers of Attorney at the earliest opportunity because mental incapacity could affect you at any time. For instance, a road traffic accident can cause head injuries or a stroke can affect anyone at any age.
6. If I am unable to make decisions about what medical treatment I want, who decides for me?
If you have not put in place a Health & Welfare Lasting Power of Attorney then the decision will be made by doctors and they will generally consult with your family but this may not be the person you would want to make these decisions. This is especially important in cases where couples are unmarried.
7. I want to remain in my own home for as long as possible – how can I give authority to my family to enable them to carry out my wishes?
Again, it will be best to appoint someone you trust to ensure that the authorities are aware of your wishes by putting in place a Health & Welfare Lasting Power of Attorney.
8. I have an Enduring Power of Attorney – what does this mean?
This was a document you could make prior to 1st October 2007. If you have a validly executed Enduring Power of Attorney dated before this time then it is still valid, and it deals with your Property & Financial Affairs. You cannot however, make Enduring Powers of Attorney any more and these have been replaced by Lasting Powers of Attorney.
The document does not deal with your Health & Welfare and you may wish to consider making one of these documents to work alongside your existing Enduring Power of Attorney.
If you are acting under an old EPA and you think the person who made the EPA is becoming or has become mentally incapable of dealing with their affairs, you have a duty to register the document with the Office of the Public Guardian. We are on hand to offer advice about the use and validity of any existing EPAs and to guide you through the registration process if and when it becomes necessary.
9. How much does a Lasting Power of Attorney cost?
We prepare Lasting Powers of Attorney on a fixed fee basis as follows:
For a single person our fee will be between £500 to £750 plus VAT.
For a couple our fee will be between £750 to £1,000 plus VAT.
Additionally, if you decide to register your Lasting Power of Attorney with the Court, the Court charges an application fee of £82 for each document.