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Lasting Powers of Attorney

Have you thought about making a Lasting Power of Attorney?

Losing physical or mental capacity is not something any of us like to think of happening to us in the future, but putting aLasting Power of Attorney in place can save your family and friends a lot of stress if it ever were to happen.

There are currently 700,000 people in the UK with some form of dementia.  In an increasingly ageing population that figure is expected to double or triple in the coming years. 

A particular problem encountered by many families is if a relative has to go into care.  The person needing care has the funds available to pay the fees, but has lost mental capacity and is no longer able to sign cheques.  Without a Power of Attorney in place the relatives are not able to access the funds required and have to apply to the Court of Protection for an order enabling them to access them.

The Legal Position

Lasting Powers of Attorney were introduced in October 2007.  They have replaced the old Enduring Powers of Attorney which the government felt did not go far enough to safeguard the positions of people who are in very vulnerable situations.

If you have already made an Enduring Power of Attorney this is still valid, and can be used whenever that becomes necessary, but no new Enduring Powers of Attorney can be created.

Lasting Powers of Attorney can only be created if you have the required mental capacity to do so.  Once you lose mental capacity then you will no longer be able to create one.

When you create a Lasting Power of Attorney you give the person or people who you appoint to be your attorney(s) the power to make decisions on your behalf.  Lasting Powers of Attorney need to be registered with the Office of the Public Guardian before the attorneys can act under them.  This is a safeguard to protect the person who has put theLasting Power of Attorney in place.

There are two types of Lasting Power of Attorney:-

  • Property and Affairs Lasting Power of Attorney
  • Personal Welfare Lasting Power of Attorney

 

A Property and Affairs Lasting Power of Attorney allows you to appoint one or more attorneys in relation to your property and financial affairs.  These attorneys can act even if you still have mental capacity, provided you agree to what they do.  This means that if you lose physical capacity and can no longer do the things you used to then your attorneys are able to act on your behalf.  They can also act if you no longer have the mental capacity to deal with your financial affairs yourself.

A Personal Welfare Lasting Power of Attorney allows you to appoint one or more attorneys in relation to your personal welfare, including your healthcare.  Unlike the Property and Affairs Lasting Power of Attorney, Personal Welfare attorneys can only make decisions on your behalf if you no longer have the mental capacity to make those decisions yourself.

Both types of Lasting Power of Attorney can be restricted.  A Property and Affairs Lasting Power of Attorney can be restricted to certain elements of your finances if you wish, or it can be left open to apply to all of your financial affairs.  If you create a Personal Welfare Lasting Power of Attorney you can decide which decisions your attorneys can make relating to your personal welfare, such as whether they can give or withhold consent to certain types of medical treatment, or whether or not they are able to decide where you should live.  If you create a Personal Welfare Lasting Power of Attorney and you wish to give your attorneys power to make decisions about ‘life-sustaining treatment’ then you need to specify this on the Lasting Power of Attorney form.

Costs

A Lasting Power of Attorney from Shepherd Harris & Co costs £250.00 + VAT.  If it needs to be registered those forms can be prepared for a further £150.00 + VAT and there is a £130.00 registration fee to be paid directly to the Office of the Public Guardian when it is registered.

If a Lasting Power of Attorney is not in place then in order for the affairs of someone who has lost mental capacity to be dealt with a Deputyship Order will have to be applied for at costs exceeding £1,200.00 (please see article regarding Deputyship Orders for more details about this situation) so making a Lasting Power of Attorney is a very good idea.

A Lasting Power of Attorney could save your loved ones an enormous amount of stress and potentially money at what will be a very difficult time for them if it happens. .

Next Steps...

For further wills and probate, contentious probate and enduring power of attorney in the UK advice or to speak to one of our expert team of wills and probate solicitors please contact Helen Phillips or Elizabeth Smith by telephone on 020 8363 8341.

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