Do you worry about what would happen to your money or property if you became unable to manage them yourself?
Do you wish to ensure that someone you trust is able to deal with this management at a time when you cannot see to your affairs?
If you answer yes to these questions, you should consider speaking to David W. Harris & Co. Solicitors about a Lasting Power of Attorney (LPA).
What is an LPA?
A Lasting Power of Attorney (LPA) is a legal document that you (the ‘Donor’) make using a special form. It allows you to choose someone (the ‘Attorney’) you trust to make decisions about things such as your finances and property on your behalf at a time in the future when you are no longer able to or you may lack the mental capacity to make those decisions yourself.
An LPA can only be used when it is registered with the Office of the Public Guardian (OPG).
There are two different types of Lasting Power of Attorney
A Property and Affairs LPA allows your Attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits or selling your house subject to any restrictions or conditions. It does not allow your Attorney to make decisions about your personal welfare.
You can appoint a Property and Affairs Attorney to manage your finances and property while you still have capacity as well as when you lack capacity. For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income. This might be easier for lots of reasons: you might find it difficult to get about or to talk on the telephone, or you might be out of the country for long periods of time.
A Personal Welfare LPA allows your Attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live.
These decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example, if you are ill or unconscious.
What will a Property and Affairs LPA let the person I have chosen do on my behalf?
A Property and Affairs Attorney, using a registered LPA, will be able to make exactly the same kind of decisions you can make now about your money and property. The person will only be able to make decisions within the scope of the powers you have given them and these decisions might include:
- Buying or selling any property (land, buildings or other assets) you own;
- Opening, closing or operating any bank, building society or other account containing your funds;
- Claiming, receiving and using all benefits, pensions and allowances on your behalf.
This list is only intended to give examples of the types of decisions that can be made on your behalf using a Property and Affairs LPA.
Who can make an LPA?
Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.
What are the safeguards?
- The requirement that the LPA must be registered with the OPG before use;
- The requirement to identify someone to provide a Part B Certificate confirming, amongst other things, that you understand the purpose of an LPA and the scope of powers you are giving to your Attorney(s);
- That certain persons chosen by you called ‘named persons’ are notified before registration of the LPA;
- The requirement for the signatures of the Donor and Attorney(s) to be witnessed.
What is a Certificate Provider?
A Certificate Provider is a person that you must select to complete a Part B Certificate of the LPA form confirming that you understand the LPA and that you are not under any pressure to make it.
A Solicitor at David W Harris & Co. can be your Certificate Provider and is a very important safeguard of an LPA.
Why do I need this Certificate?
The Certificate is a vital part of the LPA document. Without it, the LPA is not valid and cannot be registered.
When does my LPA have to be registered?
Your LPA can be registered at any time after you have made it and cannot be used until it has been registered. The LPA is made when it has been completed and signed by all those who are required to sign.
The benefit of registering the LPA shortly after it is made is that it will be ready to be used by your Attorney(s) when it is needed. If an application to register your LPA is made a long time before it is needed you may need to look at the registered document from time to time to make sure the contents are still relevant to your circumstances. In this situation you may wish to contact the OPG for up to date information on LPAs.
From a practical and financial standpoint, it is clearly advisable to have an LPA. When a family member becomes incapable, it can be distressing enough for the relatives without having to go through the long and expensive process of applying to the Court of Protection for a Deputy to be appointed. In effect, an LPA takes away the decision-making from your relatives as you have made the necessary decisions in advance and have stipulated what is to happen in the event of you being unable to cope with your affairs.
Without legal authority a relative cannot automatically take over your finances, as banks and other institutions will not accept another person’s signature unless they have a legal document such as a registered LPA.
An LPA together with a valid Will ensures that your future is taken care of so that as little distress and expense is caused as possible.
David W. Harris & Co. Solicitors are experienced in advising on and dealing with all aspects of Lasting Powers of Attorney.