Lasting Powers of Attorney8th May 2019
Gilbert Stephens Solicitors has an experienced Private Client department, spanning across our 6 branches. Conall Ryan, who is a Chartered Legal Executive working in our Crediton and Okehampton offices, talks to us about Lasting Powers of Attorney.
Private Client law encompasses many different areas, including wills, trusts, inheritance tax planning together with lasting powers of attorney (LPAs). Although people are often aware of the need for making a will, they are not always aware of the importance of LPAs.
Although no-one likes to think about it, there may come a time when you need someone to make decisions for you, or to act on your behalf. This could just be temporary, for example if you are in hospital and need help with day-to-day issues such as paying your bills; or it could be on a more permanent basis, for example if you are no longer able to deal with your affairs through an accident or illness, such as dementia.
These unforeseen circumstances can affect anyone of any age and this is why we recommend putting these in place. Then if such circumstances arise, you have already chosen who will be dealing with your affairs.
An LPA is a legal document that allows you, the ‘donor’, to give authority to your chosen ‘attorney’ to make certain decisions on your behalf.
There are two types of Lasting Powers of Attorney
1.Property and Financial Affairs LPA
This allows your attorney to make decisions on matters such as paying your bills, running your bank and savings accounts, making or selling investments and buying or selling your property. With this type of LPA you can also allow your attorney(s) to act for you whilst you still have capacity. You will still have complete control over financial decisions and their actions on your behalf – you will still be in the driving seat.
I have set these up for several clients who, for example, are housebound or have hearing problems that make it difficult for them to deal with day to day administration of their affairs.
For this type of LPA you might choose family members, friends or even a professional as your attorney.
2. Health and Welfare LPA
This type of LPA only comes into effect when you are no longer able to make decisions regarding your health and welfare, such as where you live and matters such as your diet and daily routine.
One option on this type of LPA is whether you want to give your attorney the option of being able to make decisions regarding life sustaining treatment. Some clients I have feel that this is too much to ask their attorney to do or have strong beliefs they want to be upheld, and so they make provision for this in advance so the attorney will not have to.
When choosing your attorney for this type of LPA you need to think very carefully about who you appoint and I always recommend that you discuss your feelings and your beliefs with your attorney, so that if they ever needed to act they would know they are doing what you would have wanted.
Given the personal nature of this type of LPA it is often recommended to choose a family member or close friends rather than a professional.
You do not need to do both types of LPA at the same time, but we would normally recommend doing so, so that you have everything covered.
How many attorneys should I appoint?
We would always recommend that you have more than one attorney and there are various ways they can be appointed. This can be either to have replacements or have attorneys who can act together or separately as needed.
Your attorney(s) do not need to be the same on both LPAs, though there can be an overlap, for example in cases or arranging and paying for healthcare.
Sometimes though people will have certain family members or friends that are better at certain types of decision making. When I meet with clients I obtain background information about their family and friends to be able to advise them fully in respect of their LPAs.
So that your LPAs are ready to be used, we arrange for each one to be registered at the Office of the Public Guardian as soon as everyone has signed them. As soon as the LPAs are registered your attorney can step straight into the role.
What happens if I don’t have an LPA?
If you do not have LPAs in place the process of appointing an attorney is more costly and time consuming. The process involves someone applying to the Court of Protection (COP) to become your Deputy. The COP then assess the application and can grant permission for your Deputy to only do certain tasks. They are also reluctant to appoint a Deputy to deal with your health and welfare given the very personal nature.
As with a Will, it is very important to ensure you keep your LPAs up to date. Over time your choice of attorneys may change for any number of reasons, and that change will only be affected if you revoke your old LPA and create a new one.
We advise thinking carefully about drawing up LPAs to plan for unforeseen circumstances, as these let you and your loved ones maintain some element of control, whatever your future situation.
If you would like advice regarding drawing up or updating an LPA, get in touch with Conall Ryan on 01363 775566 or email .