Lasting Power of Attorney by Monika Hill Legal Services Ltd, Dorking

Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document which upon completion is arranged by us to be registered with the Office of the Public Guardian. The LPA allows you (the ‘donor’) to appoint one or more people (the ‘Attorneys) to make decisions on your behalf should you become unable to organize your affairs at any point in your life.

 

You can make 2 types of LPA:

 

Property and Financial Affairs:

Allows you to appoint an Attorney to help you make decision or make decisions on your behalf about your properties and finances should you become incapacitated to do so yourself.

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Health and Welfare

Allows your Attorney to make decisions about your health and advanced care provisions, such as where you live, your day to day care and it extends as far as an acceptance or refusal of life-sustaining treatment on your behalf.

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Fees

Note: Discounts will be applied for a Husband and Wife/Cohabitees/Civil Partners

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One LPA and registration at the Office of the Public Guardian

from £375

Both LPAs and registration at the Office of the Public Guardian

from £570

Both LPAs for a couple (mirror images) and registration at the Office of the Public Guardian

from £825

Frequently Asked Questions regarding Lasting Power of Attorney

Having no Lasting Powers of Attorney in place – what happens?

It is a very difficult time when you are left to look after someone who has lost mental capacity, this can be made more difficult when that person does not have Lasting Powers of Attorney as this leaves you with no legal power to look after that persons financial or health affairs. It is a common misconception that people think if they lose mental capacity for whatever reason a loved one or a friend can just step in and take over your affairs. This isn’t true. Just like writing a Will to determine where your assets are left after you die, a Lasting Power of Attorney is required to look after you if you lose mental capacity. ​ There are two different Lasting Powers of Attorney to deal with the different parts of your life – ‘Health and Wellbeing’ and ‘Financial Affairs’.



What Happens if nobody has Power of Attorney over my affairs, and I lose mental capacity?

It is a difficult thing to think about, but if you feel that in the future you may lose mental capacity it is a good idea to have a Lasting Power of Attorney in place with somebody that you trust so they can act for you when the need arises. ​ This is even more important if you have joint assets which require both parties agreement. If you do not have a Lasting Power of Attorney in place it will fall on the Court of Protection to issue a deputyship and this can be a long process potentially leading to financial hardship until it is granted. ​ If mental capacity is lost during or before you make an Lasting Power of Attorney an application can be made to the Court of Protection for a deputy to be assigned as your Attorney. Anyone over the age of 18 can apply, so long as nobody objects, and that they can show they have the necessary financial skills if they are applying to look after your financial affairs. ​ If you only require a one off decision to be made, this can be applied for through the Court of Protection and can be granted by the Court without the requirement for an Attorney to be in place. ​ It is worth noting that the powers of a deputy are limited in comparison to an Attorney that is appointed by a Lasting Power of Attorney. It also attracts high fees for the application, has to be renewed annually and further fees to be paid at renewal. (Fees are determined by level of deputyship, if a court hearing is required and any exemptions)



The person I’m caring for has lost their mental capacity, but there is no lasting power of attorney in place. Can I get Power of Attorney after they have lost mental capacity?

Simple answer to this is No. You can check with the Office of Public Guardian to find out if a Lasting Power of Attorney is in place for this person but if not then it can’t be applied for after mental capacity has been lost. ​ You can apply to the Court of Protection for deputyship to make decisions on behalf of this person.



Can I get Power of Attorney without consent of the donor?

No. This is the same situation as a person who has lost mental capacity. They are not in a position to complete an application for Lasting Power of Attorney and assign an attorney. The only option is to apply to the Court of Protection to become a deputy.



What if my deputy’s application is refused?

This point shows why it is so important to have Lasting Power of Attorneys in place. On occasion the Court of Protection may refuse an application to become deputy for a friend or loved one. If this occurs the Court will appoint the local authority to be deputy for this person. This leaves the local authority with the control to look after all health and financial decisions for this person. This can be extremely traumatic for the family as they have no control on any of these decisions.



What happens to the Lasting Power of Attorney when someone dies?

The Lasting Power of Attorney ceases when the person dies including any financial decisions. The instruction of the Will now takes precedence. ​ The Estate will be distributed accordingly by the named Executor in the Will. If no Will is in place the estate will be distributed according to the rules of intestacy by an administrator. ​ The attorney on the Lasting Power of Attorney can apply to be the administrator for the estate if no will is in place.