What is a Power of Attorney?
A Power of Attorney is a legal document where you (the donor) give someone else (an attorney) the right to make decisions on your behalf in either financial or medical decisions. You can only set up a Power of Attorney while you still have the ability to make decisions for yourself, known as ‘mental capacity’ – so it’s worth putting one in place early on.
Lasting Power of Attorney is the most common form. It is an ongoing arrangement with no expiry date. Once the document is registered, it can be used immediately, with your permission while you still have capacity, or it can take effect from when you lose mental capacity. It has to be registered with the Office of the Public Guardian.
There are two types of Lasting Power of Attorney:
Health and Welfare Lasting Power of Attorney
This gives an attorney the power to make decisions about things like:
• your daily routine, for example washing, dressing, eating
• medical care
• moving into a care home
• life-sustaining treatment
It can only be used when you’re unable to make your own decisions.
Property and Financial Affairs Lasting Power of Attorney
This gives an attorney the power to make decisions about money and property for you, for example:
• managing a bank or building society account
• paying bills
• collecting benefits or a pension
• selling your home
It can be used as soon as it’s registered, with your permission.
Appointing an Attorney
You can appoint between 1 and 4 attorneys. It is important for you to ensure the attorneys are someone you know and trust to act in your best interests.
Before a Lasting Power of Attorney is made, it is imperative that the donor is over 18 and has mental capacity. This means they must understand:
• What a Lasting Power of Attorney is
• Who they are appointing as attorney
• What powers the attorney will have
If the donor cannot decide for themselves in relation to the matter due to an impairment of or disturbance in the functioning of his mind or brain, such as late set dementia, it is likely they will not have the required capacity. Essentially, the donor should be assessed on whether they have the ability to make a particular decision at a particular time. If unsure, a GP or independent mental capacity advocate can assess the donor’s capacity.
Forms submitted to the Office of the Public Guardian can take up to 16 weeks to be registered.
FREQUENTLY ASKED QUESTIONS
Can I do a Lasting Power of Attorney if my father has lost capacity?
No. This can only be made by someone who has mental capacity. If a person loses mental capacity and has no Power of Attorney in place, an application would need to be made to the Court of Protection who will appoint a deputy to act in the donor’s best interests (this is known as a Deputyship Order). Anyone over the age of 18 can apply to the Court of Protection to be a Deputy to make financial decisions on the donor’s behalf. This can be a lengthy (normally 6-month time frame) and very expensive process with the added risk that the application may be refused by the Office of the Public Guardian or that no provision will be made for Health and Welfare.
Do I have to register my Lasting Power of Attorney straight away?
To be effective, a Lasting Power of Attorney must be registered with the Office of the Public Guardian. There is a registration fee of £82 per document and this is means tested so if the donor is on a low income or benefits, they may be eligible for remission of those fees. It is better to have this registered as soon as possible. The principle reason for this is that if the Lasting Power of Attorney is registered later on or where the donor starts to lose capacity, if the form is returned by the Office of the Public Guardian for any reason (given the long turnaround time), the donor may no longer have capacity and therefore cannot sign the form. This will mean the LPA cannot be put in place for the donor anymore and an application for deputyship will need to be made.
Once my LPA has been registered, can I change it?
Yes. A Lasting Power of Attorney that has been registered can be revoked at any time, providing the donor still has mental capacity. This does mean a new Lasting Power of Attorney will need to be made and further fees will be payable.
Can I get a Lasting Power of Attorney for my business?
Yes. Whilst there is no such thing as a “Business Lasting Power of Attorney,” you can use the Property and Financial document to ensure attorneys can continue to make decisions about the continuity of your business, paying staff, entering into contracts etc. This means if you are a business owner you could have two Property & Financial Affairs Lasting Power of Attorneys, one dealing with your personal finances and the other appointing attorneys to deal with your business interests.
If you would like to find out more information regarding making a Lasting Power of Attorney or to make an appointment, please contact us.
Why do I need a Will?
Many people don’t have a Will in place or the Will that they do have may not still meet their needs. Do you know what happens if you don’t have a valid Will in place?
A will is a legal document by which a person expresses their wishes as to how their property is to be distributed upon their death. Within the Will you can also state who you would like to look after your children if they are under 18, ensuring that they will be cared for as you wish rather than the courts deciding who becomes their guardian.
If you die without a valid Will, Intestacy rules apply, have a look at the Rules of Intestacy flowchart for further information. A valid Will allows you to:
Appoint Executors – to administer your estate according to your wishes.
Appoint Trustees – to take responsibility to manage money or assets that have been set aside in a trust.
Appoint Guardians – to look after the interest of a child/ren.
Make specific gifts – a gift of something specified, e.g. jewellery.
Make gifts of money – e.g. £1000 to a grandchild.
State Beneficiaries – who you wish to leave your estate to.
State funeral wishes – any instructions you wish to leave.
It can be quicker and less costly to settle an estate with a valid Will. Reducing legal fees protects the value of your property and savings to be passed to beneficiaries.
A Will that clearly outlines your wishes for funeral arrangements and distribution of your estate can reduce confusion and possible family disagreements during a stressful and emotionally difficult time for loved ones.
Why it is important to appoint a ‘guardian’ for your child.
A loss of parents can be extremely distressing for any child. If you have not put a plan in place detailing your wishes, the Court may appoint a guardian for your child in the event of your death. This may be someone that that you would not wish to look after your child and can lead to arguments between the family. Worse still, your child may be placed into care.
You may have heard of the term “guardianship,” but have you ever thought about whether this is something you need to put in place?
A guardian is someone who has the legal authority to take care of a child (under the age of 18) in the event of the death of their parents or carer.
This can be one of the most important decisions that a parent can make.
Hopefully this is something you may never have to use, but as a parent if something were to happen to you would you want your child to still be loved and well cared for by someone you trust?
In order for you to protect your family’s future there are several considerations:
What is the Role of a Guardian?
A guardian will effectively have overall responsibility for your child including: –
- choosing and arranging your child’s education
- consenting to any medical treatment for your child
- providing emotional and financial support
Being a guardian carries an immense amount of responsibility and it is essential to discuss you wishes with your guardian(s) and let them know your wishes before you add them in your will.
Who should I appoint as Guardian?
Before you appoint a guardian there are many considerations including: –
- Do they live close to you? If not, would your child be moved away from their school and friends?
- Does your guardian share a similar lifestyle and will bring your child up in the same way you would?
- Does your guardian have other children and will they able to raise another child?
- Will your guardian be able to provide financial and emotional support?
- Does your child know and like the guardian?
- Are there any cultural or religious values you’d like your children to be raised with? Does your guardian share the same values?
- Does your guardian have the mental and physical ability to raise the children? Bear this in mind for appointing grandparents.
By appointing a guardian in your Will you will have peace of mind of knowing that in the event of you death your child will be looked after by someone that you trust.
For further information or to book an appointment please contact us.