Category Archives: Lasting Powers of Attorney

Are you owed a refund after setting up a Lasting Power of Attorney?

Nearly two million people are due a refund after the Office of the Public Guardian (OPG) overcharged for registering a Lasting Power of Attorney (LPA).

An LPA gives someone the right to manage your affairs after you become incapable of doing so. You can execute an LPA in respect of your health and welfare and/or in respect of your property and financial affairs.

The Ministry of Justice has announced that the OPG overcharged those who registered an LPA between 1 April 2013 and 31 March 2017, and that they are entitled to a refund.

So far only 200,000 claims have been made out of 1.8 million who are qualified to do so.

Making a claim

Either a donor or an attorney can make the claim. They will need to supply the donor’s bank details, as the payment will be made to the donor. A copy of the LPA should also be included.

The claim form can be accessed via the government information page https://www.gov.uk/power-of-attorney-refund. In some cases, including where the donor does not have a bank account or the applicant is a court-appointed deputy, the claim will need to be made by phone by calling the helpline on 0300 456 0300, option 6. The deadline for claims is 1 February 2021.

How much will be refunded?

The amount of the refund will depend on when the LPA was registered, as fees paid differed over the time period in question.

Date Fee Paid                      Refund
April to Sept 2013                 £54
Oct 2013 to March 2014      £34
April 2014 to March 2015    £37
April 2015 to March 2016    £38
April 2016 to March 2017    £45

A claim can be made for each LPA registered. Interest will also be paid at a rate of 0.5 percent.

Who needs an LPA?

It is advisable for everyone to take the time to make an LPA, so that in the event they become unable to manage their affairs, either through illness, injury or incapacity, their chosen attorney can step in to help.

In the absence of an LPA, application would need to be made to the court, which could be an expensive and time-consuming process. This could also mean that you might not have your first choice of attorney acting for you.

You can execute an LPA, then keep it until such time as it is needed, at which point it is registered with the OPG.

If you would like to talk to one of our expert lawyers about drawing up an LPA, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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Why you shouldn’t try and draft your own Power of Attorney

Giving someone the power to deal with your affairs can be a good idea, but if the document isn’t drafted carefully it can lead to expensive financial and administrative problems.

A Lasting Power of Attorney is the document which gives someone the authority to deal with financial affairs on behalf of another. It is often signed by older people in anticipation of the time when they may become unable to deal with matters by themselves. It must be executed while the donor is still mentally capable of understanding the authorisation they are giving.

Problems can arise if the document isn’t carefully drafted, clearly and unambiguously setting out exactly what the donor wants the attorney to do for them. There are many decisions to be made, including the following:

How many attorneys?

More than one attorney can be appointed. The document needs to state whether they are able to act jointly and severally or just jointly. If they are only able to act jointly, then every attorney will need to be a party to each individual transaction, for example signing a cheque or authorising a financial transaction.

There is also the option to name replacement attorneys who would step in if one of the original attorneys died. Again, their role will depend on whether the original attorneys were acting jointly or jointly and severally. If the original attorneys had to act jointly, then on the death of any one of them, all of them would be forced to stand down and the replacement(s) would step in.

When can the Power of Attorney be used?

The donor can choose to allow the Power of Attorney to be used before they become incapacitated, for example, to facilitate dealing with banks where mobility is an issue. Alternatively, they may want to manage their own affairs until such time as they are mentally unable to.

Restrictions

The Power of Attorney can cover all financial affairs, or it can contain restrictions, for example, not permitting sale of a house or large cash gifts. It is important that any restrictions are clearly drafted, with no ambiguity.

Other Powers of Attorney

The donor may also have drawn up a personal welfare Power of Attorney to deal with health and welfare matters. If different attorneys are named on that document, financial attorneys may need to cooperate with them to find the best way forward for the donor.

Having a Power of Attorney document professionally drafted by experts is well worth the expense. If a document contains errors or is poorly worded it could end up being contested or being declared invalid. In that case, any legal action or application to the Court of Protection to appoint a deputy would be expensive and could result in the donor’s affairs not being administered as they would have chosen.

If you would like to speak to a lawyer who specialises in drawing up Powers of Attorney, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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joint bank account

Implications of using a joint bank account instead of a Lasting Power of Attorney

A recent survey has revealed that a staggering number of people have granted relatives informal access to their bank accounts.

A Lasting Power of Attorney (LPA) is a formal document by which an individual can give one or more people access to their financial affairs and the power to spend money on their behalf.

It is relatively simple to set up and register, but it seems that many older people are choosing to give others informal access to their bank accounts instead.

A recent survey carried out by the Co-operative Society found that a quarter of over-45 year olds have been given access to the bank account of someone other than their spouse.

While this may seem like an easy solution to allow people to help out older relatives, the truth of the matter is that there are serious implications for all involved.

Why granting informal access to a bank account should be avoided.

Firstly, there is no protection for the owner of the bank account. The access will not be supervised in any way and it may become increasingly hard for the person granting the access to keep a check on their finances.

It offers great scope for abuse by the person to whom the access is granted. While they may start out with good intentions, the temptation to misappropriate funds might be hard to resist.

If the person owning the bank account dies, the administration of their estate may be delayed as investigations are made into any improper use of funds by the person with access.

There is also room for suspicion by other relatives if there has been no supervision over years of informal access.

The advantages of using a Lasting Power of Attorney.

By using a formal document to give someone official access to your financial affairs, everything is kept above board and visible.

There is far less scope for abuse as the document is registered with the Office of the Public Guardian (OPG) once it is put into use and the OPG will supervise the attorney’s activities.

If the OPG suspects that the best interests of the person granting the LPA are not being observed, they have the power to investigate. They can remove the attorney and appoint a replacement if they find any impropriety.

How to set up a Lasting Power of Attorney

An LPA can be completed before it is needed and then kept until the time that you decide you need an attorney to help with your affairs, when it will be officially registered.

To speak to one of our expert team about setting up an LPA, call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Guide to LPA

A Quick Introduction to Lasting Powers of Attorney…

There may be times in your life when you’re unable to manage your own personal affairs. Sickness, injury, old age and short-term incapacity can leave you unable to make decisions about your wellbeing.

While a daunting thought, in advance of these circumstances, you can grant legal authority to someone you trust to make a decision on your behalf.

This is done by completing a Lasting Power of Attorney (LPA) and it legally authorises a designated individual or individuals to take care of your personal matters for you.

Two types of LPA

You can apply for a Health and Welfare LPA or a Property and Financial Affairs LPA. Often, both are applied for together, allowing the attorney to make a decision in both areas and protect the overall wellbeing of their friend or family member.

The Health and Welfare LPA covers matters around your physical care and welfare. Your attorney may be required to make important decisions about any medical treatment you are given, your housing, your general care, and also whereabouts you are cared for. So it’s essential that you select a person you trust, and who will advocate for you when they are required to speak on your behalf.

When it comes to the Property and Financial Affairs LPA, the purpose of this agreement is to make a decision on your financial wellbeing and manage your finances day to day. This could include being responsible for your home, any financial assets, as well as your bank account and savings. It’s important to select someone who will manage your financial affairs soundly.

How to choose your Attorney?

Becoming an Attorney is a big responsibility, and it’s essential to choose someone that you trust. Whether Financial, Welfare or both, you need to be assured that they will behave with integrity, advocate for you when you are unable to, and make often difficult decisions that are in line with your values and instructions (which you can set out in your LPA). It’s worth noting that you can choose more than one Attorney and prepare a stand-in in the event that your original choice is unable to or fails to act.

What is a Certificate Provider?

A Certificate Provider is required to counter-sign your LPA. This protects potentially vulnerable people from being coerced into designating Power of Attorney to someone against their will. Typically, friends, neighbours or the medical community can provide this role. However, they are required to have known you for a minimum of two years.

How do I complete the paperwork?

It’s always smart to consult with a lawyer before you begin your LPA process. A lawyer will also ensure that your paperwork is registered with the Office of Public Guardian (OPG).

To find out more, why not download our Free Guide to Lasting Powers of Attorney or talk to one of our experts to learn how we can help you to create and register either or both kinds of LPA. Call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Prepare for later life with an LPA

The majority of people are not prepared for later life…

According to the latest figures, from the office of National Statistics, while they are rising in popularity, fewer than 1 in 10 adults have made a Lasting Power of Attorney (LPA), suggesting that the majority of people are simply not prepared for later life.

An LPA is one of the best ways to protect yourself and your wishes, should you become unable to make financial or health decisions for yourself.

There are two kinds of LPA, a Property & Financial Affairs LPA and a Personal Welfare LPA. Both deal with very different matters.

However, according to the latest figures from the Office of the Public Guardian, there were only 1.4 million Financial LPAs registered in 2016, and 600,000 Health and Welfare LPAs.

People are living longer than ever before

In the UK, the number of people who reach their 85th birthday is expected to double by 2045. At the same time, the Alzheimer’s Society predicts that there will be more than two million people with Alzheimer’s by 2051.

As such, the prospect of being unable to make decisions in later life is one which more of us will have to consider. So, it is more important than ever to plan for later life.

However, while the number of LPAs is rising quickly, many people are failing to make a LPA because they are unsure about what it involves and why it is needed.

You will find some very straight-forward information from Age UK here.

The importance of later life planning

With an increasing number of seniors set to live on into their eighties and nineties, we are likely to see a corresponding rise in people who are no longer able to make decisions for themselves. And, even where people trust that their family will look after them, without any guidance this can be hugely stressful for those left to do so (and cause disagreements between those closest to them).

An LPA can go some way towards managing this problem. With an LPA, you appoint a trusted relative or friend to become an ‘attorney’ and look after your financial affairs, or make decisions about your care and medical attention when you are no longer able to do so yourself. You can also include specific instructions to help them make decisions you would approve of.

Don’t leave it too late

However, when it comes to making sure you are fully protected, planning in advance is crucial. If you put it off indefinitely then you run the risk of not being in a fit state to understand and sign an LPA.

To find out more and to protect yourself if you become unable to manage your financial affairs, and to make informed decisions about your long-term health arrangements, take a look at our Estate Protection services or speak to one of our expert team. Call us at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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Claim your refund

Are you owed money from the Office of the Public Guardian?

If you applied to register a power of attorney in England or Wales from 1 April 2013 to 31 March 2017, then you may well be owed money from the Office of the Public Guardian.

The background to this is that the Office of the Public Guardian – the people you paid a fee to in order to register a power of attorney in England or Wales – is not supposed to make a profit. So when the registration fee per power of attorney was reduced from £110 down to £82 fairly recently, they had to admit they’d been making a profit on the fees for some time, hence the reduction in the price of the fee.

But what about the profit they’d been making in years gone by?

Well, they’re not allowed to “keep” that profit. So, anyone who applied to register a power of attorney between the above dates, can go online and register a claim. Although the payment will only be made to the “donor” (which is the person who made the LPA), if you’re a an ‘attorney’ (someone appointed by the donor in an LPA or EPA to make decisions on their behalf) or have been formally appointed as a replacement attorney, (and are now able to make decisions on the donor’s behalf) then you can make the online claim. If the donor has died, then only the executor of the will or administrator of the estate can claim a refund.

Filing the claim should only take about 10 minutes online and they’ll let you know in about 12 weeks as to whether you’re claim has been successful. You must however claim your refund by 1 February 2021.

When it doesn’t pay to improve efficiency

The Office of the Public Guardian said that they hadn’t ‘fessed up to it before because the volume being processed hadn’t initially produced a profit. But now that they have a greater number of powers of attorney going through the system and they haven’t had to increase the number of staff to manage them (because it’s a heavily computerised process) this has led to them making a profit.

What would you do with £34…

The refund amount ranges from £34 to £54, depending on when you applied to register the power of attorney. It might not be an earth-shattering amount, but what would you do with yours?

Find out more about it here: https://www.gov.uk/power-of-attorney-refund

For further information or to arrange an appointment to discuss any aspect of Wills, Lasting Powers of Attorney and Trusts, please call one of our expert team at legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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Busting the most common misconceptions about LPAs…

A Lasting Power of Attorney or LPA is one of the best ways to protect yourself and your wishes should you become unable to make financial or health decisions for yourself.

But, all too often people fail to make an LPA because they are unsure about what it involves and why it is needed. Here are the most common misconceptions about LPAs:

I don’t need an LPA because I am fit and healthy

Our individual circumstances can change in an instant. People lose mental capacity for many different reasons including accidents, strokes and heart failure.

So, rather than waiting until you are losing capacity to make an LPA, it makes sense to do so when you are still able to understand and sign the document yourself. Don’t leave it until the moment an LPA is needed as that could be too late.

I have a Will so I don’t need an LPA

While a Will sets out what happens to your estate after you die, an LPA deals with what happens if you can no longer make decisions for yourself while you are still alive. As such, they are very different documents that deal with very different circumstances. Both are needed to protect you and your assets.

My family will look after me, so I don’t need an LPA

Even if your loved ones all agree on how best to look after your finances and health (and this often isn’t the case), it can be hugely stressful for them if they don’t know what your wishes are. An LPA reduces the likelihood of disagreements between those closest to you and gives them the confidence that they are doing what you would wish.  For example, you can decide whether your attorney has the power to accept or refuse life-sustaining treatment on your behalf or set out what you would want.

My family will make decisions that I don’t approve of

With an LPA, you not only retain the right to look after your own affairs for so long as you are capable, but you can also limit the powers an attorney is given, and, include specific guidance to help them make decisions you would approve of.

I already have one LPA, I don’t need another one

There are two kinds of LPA: a Property & Financial Affairs LPA and a Personal Welfare LPA. Both deal with very different matters and having just one will not cover all the different decisions you might need to be made for you.

I have a joint bank account, so my husband/wife/partner can look after our finances

Even if you hold a joint account, you could face issues accessing your cash. In fact, banks often freeze accounts to protect the vulnerable person until they see a copy of a registered LPA.

To protect yourself against becoming unable to manage your financial affairs, and to make informed decisions about your long-term health arrangements, speak to one of our expert team at legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk.

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Do you need a living Will?

A living Will (or an advance decision as it is also known) allows you to make a decision about refusing medical treatment in the future. It means that if you are ever in a position where you cannot communicate your wishes, medical staff know what they are. This can even include a decision not to receive certain life-sustaining treatment.

An advance decision is a legally binding document. However, if your family or medical staff are unaware you have prepared one, then your wishes may not be honoured.

This was the case for Brenda Grant. Brenda suffered a stroke in 2012 and although she had prepared an advance decision stating that she did not want certain treatments, she was fed artificially for two years.

In this case the hospital was in possession of the advance decision but had misplaced it.

Whilst Brenda had informed her doctor of her decision, she had not told her family, so it was only when her doctor flagged it up two years later that her wishes were finally respected.

If she had chosen to prepare a lasting power of attorney (LPA) instead, this situation could have been avoided.

An LPA for health and welfare covers a wide range of issues relating to the care of an individual if they don’t have the capacity to make decisions for themselves.

Though it is a legal document just like the living Will, it must be lodged with the Office of the Public Guardian in order for it to be recognised. This ensures that it will be recorded on a national and searchable register. One or more attorneys (normally family members) must be appointed to make the decisions, so in the event of you not being able to make them yourself, there is less risk that your wishes will not be known.

An attorney must make decisions that are in the best interest of the donor (the person who the LPA relates to). The donor can detail what their preferences are and list any instructions for specific circumstances.

Whilst it is possible to have both a living Will and an LPA for health and welfare set up, the latter will take precedence should a conflict arise.

At legalmatters we’re always happy to discuss our clients’ needs and to answer their questions. Call us today on 01243 216900 or email us at info@legalmatters.co.uk.

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Writing a business LPA…

The use of the Lasting Power of Attorney (LPA) – where an ‘attorney’ is appointed to make certain decisions on your behalf should you reach the point where you are unable to make them yourself – has increased significantly in recent years.

However, it would be a mistake to view LPAs as purely a tool for individual use. A business or commercial LPA can prove just as useful if you happen to own your own business.

What would happen if you were injured or fell seriously ill? It may be that you have company documents such as a partnership deed or shareholders agreement to say who would take over the running of the company but who makes shareholder decisions i.e. who would be in charge of those strategic decisions on which the future of the business will depend?

While there may be some form of informal understanding among you and your senior team of who would take on that responsibility that may not be enough if you are also a shareholder in a business. Without some form of legal structure in place, there may be issues with them accessing the business’s bank accounts, arranging contracts with suppliers, even paying the salaries of the existing staff. It may not take long for the company to end up in serious difficulties.

Writing a business LPA is an excellent way to tackle this, ensuring that an appointed attorney is in place to step in and maintain continuity should you no longer be able to fill that role.

Picking a suitable attorney for a business LPA is not altogether different to selecting one for a personal LPA. You need to find someone who you trust, who is reliable and who has a similar outlook and attitude towards the business as you. It’s vital that you talk this responsibility through with them in advance though, so they are well aware of what will be expected of them should you fall ill or be involved in an accident.

As with a personal LPA, you can appoint more than one attorney, and specify that they act together in certain areas but separately in others.

Successful business owners pride themselves on being prepared for all situations, and sadly ill health is an important one to consider. Without making it clear legally that one of your team can step in and make important business decisions on your behalf, if you are no longer able to, it can put the very future of the firm in danger. Having a business LPA in place is vital.

To find out more about LPAs, contact legalmatters. Call us on 01243 216900 or email us at info@legalmatters.co.uk to discuss your particular situation.

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Help! I’ve been asked to be an Attorney!

The number of people making use of Lasting Power of Attorney (LPA) agreements has increased enormously in recent years. In fact, according to data from a Freedom of Information request, the number of LPAs has increased threefold since 2010.

This is undoubtedly a good thing; LPAs allow you (the “donor”) to nominate an “attorney” – perhaps a relative, a friend, a professional (for example a solicitor), your husband/wife/partner – to step in and make decisions on your behalf should you no longer be able to do so.

According to the Alzheimer’s Society there are currently 850,000 people in the UK living with dementia, and that’s expected to pass the million mark by 2025. As a result, an LPA is an excellent piece of planning, ensuring that someone you trust will be making decisions in your best interest should the need arise.

But what about the people that are asked to be an attorney? What does it mean for them?

  • It’s a significant responsibility, so generally people are advised to select good friends or close relatives to be their attorney.
  • As there may be a lot of administration involved – such as sorting out a care home, paying the care fees and keeping up to date records of the donor’s affairs – they need to be reliable.
  • At all times, the attorney will be expected to act in the best interests of the donor, acting in accordance with the terms of the LPA.
  • What’s more, the attorney cannot ask anyone else to take over their duties unless the donor has authorised them to do so.
  • All of this will be unpaid, although the attorney will be able to claim reasonable expenses.

For anyone who’s been asked to be an attorney but believes that it may be too much for them, it’s important to speak to the donor in advance of the LPA being registered, when it would be too late.

LPAs can give donors peace of mind that someone they trust is making decisions on their behalf. However, selecting the right attorney may be more complicated than it first appears, and it’s vital that attorneys are clear on their responsibilities before taking on the role.

For help preparing an LPA – or to discuss the responsibilities of an attorney – call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.