WHAT IS A LASTING POWER OF ATTORNEY?
A Lasting Power of Attorney is a legal document that enables you to appoint people who you trust to make decisions on your behalf.
The person who makes the Lasting Power of Attorney is known as the Donor. The person or people who the Donor gives the power to, to act on their behalf are known as the Attorneys.
There are two types of Lasting Powers of Attorney. One covers decisions relating to Property and Financial Affairs and the other relates to decisions made in connection with Health and Welfare. Sometimes a person makes both or sometimes they prefer to just make one. It is entirely up to the person and their circumstances.
Examples of Property and Financial Decisions are:-
- Opening, closing and using you bank and building society accounts.
- Claiming, receiving and using your benefits, pensions and allowances.
- Paying your household, care and other bills.
- Making or selling investments
- Buying or selling your home
Property and Financial Affairs Lasting Powers of Attorney are used mostly when a person has lost mental capacity but can also be used if a person has lost physical capacity e.g. they are house bound and are unable to leave the house to manage their financial affairs.
Examples of Health and Welfare Decisions are:-
- Giving or refusing consent to health care
- Staying in your own home and getting help and support from social services
- Moving into residential care and finding a good care home
- Day-to-day matters such as your diet, dress or daily routine
Health and Welfare Lasting Powers of Attorney can only be implemented once a person has lost mental capacity.
To come into effect, both types of Lasting Power of Attorney must be registered at the Office of the Public Guardian.
WHAT IS AN ENDURING POWER OF ATTORNEY?
An Enduring Power of Attorney works in a similar way to a Lasting Power of Attorney, however, there are three fundamental differences:-
- Since 1st October 2007 Enduring Powers of Attorney can no longer be drafted, but, if a person has created a valid Enduring Power of Attorney prior to the 1st October 2007 they can still be used.
- Once an Enduring Power of Attorney has been signed by all parties correctly this validates the documents meaning it can be used straight away unlike a Lasting Power of Attorney that can only be used once it is registered at the Office of the Public Guardian.
- Enduring Powers of Attorney do not cover decisions made in relation to Health and Welfare. They only govern decisions in relation to Property and Financial Affairs.
The only time and Enduring Power of Attorney needs to be registered is when the donor has lost mental capacity.
WHY IS IT IMPORTANT TO HAVE PREPARED A LASTING POWER OF ATTORNEY?
Preparing a Lasting Power of Attorney in advance gives the Donor control as to who they wish to appoint to act on their behalf should they ever require such assistance.
Once a person has lost mental capacity they are unable to give instructions to create Lasting Powers of Attorney. It would be up to the family members or the carers to make an application to the Court of Protection for a Deputyship Order. The person who has lost mental capacity would have no control over who was appointed to make decisions on their behalf and furthermore it is very costly and time-consuming and the legal and associated fees involved can easily reach £10,000 or more.
WHAT IS THE PROCEDURE FOR MAKING LASTING POWERS OF ATTORNEY?
As mentioned above a Lasting Power of Attorney can only be made whilst the person giving the instructions to make it has mental capacity to do so. This highlights the need to have prepared the document before it is required.
To prepare the documents we would invite you to attend our offices and have an appointment with a member of our Wills and Probate department who can complete the necessary paperwork with you.
You will be able to nominate who you would like to appoint as your attorneys, decide which Lasting Powers of Attorney you would like to make and stipulate any preferences or specific instructions as to how your Attorneys are to deal with your affairs should you wish.
Once the document has been drafted the most important part is to have the document signed by the following people:-
- The Donor (yourself – the person giving the instructions)
- The Attorneys (the person or people that you choose to act on your behalf)
- Certificate Provider (this is a person who signs the document to confirm that you have sufficient mental capacity to give instructions – a certificate provider can be someone who has known you personally for two years or more such as a friend, neighbour, colleague or former colleague, or without the two year requirement someone with relevant professional skills such as a GP, solicitor or healthcare practitioner).
The Donor and the Attorneys must have their signatures witnessed.
WHO CAN ACT AS MY ATTORNEY AND HOW MANY SHOULD I NOMINATE?
An Attorney is not required to have legal knowledge or training. It should be somebody you know well and trust for example a spouse, best friend, sibling or children etc.
You can appoint more than one Attorney and you can also appoint replacement attorneys.
We always recommend that you appoint at least two Attorneys, this is in case, if you have only nominated one Attorney and that persons dies prematurely then it would invalidate the Lasting Power of Attorney: the second or subsequent Attorney (there is no limit on numbers) can be appointed either in parallel with the first Attorney or as a reserve back up.
An Attorney must be over the age of 18, have mental capacity and not be bankrupt or subject to a Debt Relief Order.
WHAT HAPPENS ONCE MY LASTING POWER OF ATTORNEY HAS BEEN COMPLETED?
A Lasting Power of Attorney can only be used once it has been registered at the Office of the Public Guardian save in dire emergency. The registration process is currently taking approximately 11 weeks from the date we are able to dispatch the completed and signed forms to the Office of the Public Guardian.
It is up to the Donor whether they want to register the Lasting Power of Attorney straight away or only when it is needed.
If you choose to register it only when it is needed, we will keep the signed document in our safe storage until it is required. It may not need to be used at all, however, it can be called upon if needed similar to an insurance policy. The most important aspect is to have one prepared in case it is needed.
WHEN SHOULD I REGISTER MY LASTING POWER OF ATTORNEY?
At Albinson Napier we usually recommend that the Lasting Power of Attorney is only registered when it is needed.
The main reason for this is because it is an easy process to amend an unregistered document should the need arise for example if one of your attorneys predeceases you, one of your attorneys becomes bankrupt meaning they could not act as an attorney, you no longer speak to an attorney or you discover an attorney has been convicted of fraud etc.
If the document has been registered straight away it is very difficult to change any aspects of the document.
HOW IS MY LASTING POWER OF ATTORNEY REGISTERED?
The Donor or Attorneys can register the Lasting Power of Attorneys depending upon the circumstances.
The Attorneys usually register the Lasting Power of Attorney when the Donor has lost capacity.
The Lasting Power of Attorney is registered at the Office of the Public Guardian and the current court fee for registering a Lasting Power of Attorney is £82 although sometimes fee exemptions or fee remissions are available.
Our fees for drafting the Lasting Powers of Attorney are as follows:-
- For both Property and Financial Affairs and Health and Welfare Lasting Powers of Attorney we charge £300 plus VAT.
- For a standalone Property and Financial Affairs Lasting Power of Attorney we charge £230 plus VAT.
- For a standalone Health and Welfare Lasting Power of Attorney we charge £230 plus VAT.
- To Register the Lasting Powers of Attorney we charge £200 plus VAT plus Court fees. Please note it is currently £82 Court fee for registering each Lasting Power of Attorney (each Lasting Power of Attorney is treated as a separate transaction).
- If you give instructions for a Lasting Power of Attorney whilst you are making a Will we will give a discount of £50 off each of the above fees.
- We reserve the right to increase our fees should matters become more complex than initially anticipated.