The importance of Power of Attorney
Laker Legal Solicitors - 22nd June 2016
What is a Lasting Power of Attorney (LPA)?
Sometimes an LPA is referred to as just a Power of Attorney or POA. They all mean the same thing.
An LPA is a legal document that is drawn up and signed by the Donor & Attorney(s) formalising the appointment and then the document needs to be registered with the Office of the Public Guardian (OPG) for it to be approved and valid. There are set forms created by the OPG.
- Donor = Person giving an LPA
- Attorney = Person appointed by Donor to make decisions on their behalf & in their best interests.
Why do I need one?
- A registered LPA will allow your appointed Attorney(s) to handle your affairs if you become unable to do so yourself.
- Even if you are perfectly fit, healthy and mentally capable now, sadly the truth is that this may not always be the case. It is therefore crucial that any LPA is given whilst you still have capacity because you can`t grant one if you have lost capacity!
- For example, later in life you may suffer from Dementia or Alzheimers or you may be involved in a serious accident leaving you in a coma or with brain damage and entirely unable to make any decisions for yourself. If this happened then your attorney would basically step into your shoes and make decisions as you would do for yourself.
- Your attorney would make decisions for you in your best interests and therefore being an attorney is a very serious responsibility. It provides peace of mind for the Donor in the event something unforeseen does happen to them.
How much does it cost and how long does it take to sort out?
- There is a £110.00 registration fee per LPA (so a maximum £220.00 for both LPAs). You may be entitled to registration fee exemption or partial fee remission based upon your income / benefit entitlement.
- Legal fees range from £250- £500 + VAT per LPA. If you are quoted more than £500+ VAT for one LPA then you are instructing a rather expensive legal firm!
- We only charge £350 + VAT for one LPA, and £550 + VAT for two.
- The forms are very tricky and fiddly and any mistakes can be fatal to an application so seeking legal guidance is highly recommended. Furthermore, if you do make a mistake then you may have to re-do the forms and pay the registration fees again!
- As a general rule it takes between 8 – 12 weeks to register the LPA from submission of the application to the OPG. There is a minimum statutory waiting period of 4 weeks and therefore you rarely find the OPG register the forms in less than 6 weeks.
What if I don`t get one and I lose capacity?
- If you don`t get an LPA in place and you do lose capacity then your nearest and dearest would have to consider someone making an application to the Court of Protection for Deputyship.
- This usually takes about 6 months and can be even longer depending on the specific case. Much longer than registering an LPA!
- Costs associated with the Court of Protection, involve a £400.00 application fee, medical assessment fee which can be anywhere between £100 – £400, legal fees are a minimum of £850 + VAT, there are insurance bond fees depending on the size of the estate and fees charged by the OPG to monitor and keep tabs on the appointed Deputy. Usually fees easily eclipse £2,000.00 and some applications cost much more indeed.
What sorts of decisions can my attorney make ?
There are two different types of LPA`s :
Property & Finances
The LPA for property and financial affairs allows you to authorise another person to make decisions on your behalf in relation to your property and financial affairs and to generally manage your financial affairs.
- This might include the buying and selling of property
- The managing of various bank or building society accounts, stocks, shares and investments;
- Or just the day to day management of your income and outgoings;
- An Attorney can do exactly what the Donor can do providing they act in their best interests and the LPA doesn`t restrict certain activities.
Health & Welfare
Health and Welfare issues can be extremely vast but generally they deal with the following matters:
- Where the Donor should live and who they should live with;
- Whether the Donor should go into a nursing or residential home;
- Whether the Donor should reside with a family member;
- Daily care including dietary specifics;
- Whether the Donor would like the Attorney to consent or refuse life sustaining treatment on the Donor`s behalf; ( this is extremely important )
Ultimately, if there was a disagreement between the health care provider and the close family members then the health provider`s authority would trump that of the “next of kin”.
If there was a Health & Welfare LPA in place and the Donor lost capacity then the Attorney could make decisions on their behalf and in line with their best interests, subject to any restrictions or wishes contained in the LPA.
Other than the obvious points, a key difference between a Property & Finance LPA and a Health & Welfare LPA is that a Health and Welfare LPA is only able to be used in the event of the Donor losing capacity. With an LPA for finances the Donor may simply choose to allow the Attorney to make financial & property decisions on their behalf and in accordance with their best interests whilst he/she does have capacity.
What if I have a Living Will?
It is important to note that a registered Lasting Power of Attorney for Health & Welfare would effectively overrule a pre-existing Living Will so if you have a Living Will then it would be logical and sensible to record the important parts of that Living Will within the body of the Lasting Power of Attorney, that way the Donor`s wishes in the Living Will aren`t nullified.
Please contact us in you would like to discuss getting Lasting Power of Attorney in place for you or a loved one.