Category Archives: Lasting Powers of Attorney

Legal Power of Attorney

Why a Lasting Power of Attorney is preferable to a Deputyship Order…

A Lasting Power of Attorney (LPA) allows you to appoint an attorney to deal with your affairs once you are no longer capable of doing so yourself. If you do not have an LPA, then your family will have to apply for a Deputyship Order to allow someone to help you.

There are two types of LPA: one for dealing with your property and financial affairs and one for your health and welfare.

You can choose a different attorney for each LPA if you wish, and the document will not come into effect until it is registered, allowing you to execute it well before it is needed.

If you don’t have an LPA

If you become unable to manage your affairs and you have not executed an LPA, then your family will need to apply to the Court of Protection for a Deputyship Order to appoint a deputy to act on your behalf.

This application can take several months to process and will need supporting evidence, such as a medical assessment.

It is also an expensive procedure, with court application and hearing fees of several hundred pounds each, medical assessment fees and, if a professional deputy is appointed, their ongoing charges. There will also be legal expenses if your family need help navigating the process.

In contrast, the cost of executing an LPA is relatively low, and the registration fee is currently £82.

Why an LPA is the best solution

As well as being a difficult, expensive and time-consuming process to appoint a deputy, it can mean that for a time no-one is able to help you with your affairs.

If you have become unable to deal with them yourself, there may be several months when your finances cannot be managed. This can be a big strain on those trying to help you, particularly if bills need to be paid or services ordered.

With regard to your health and welfare, the Court of Protection prefers not to appoint a deputy to act in respect of all of an individual’s health and welfare needs. The court will rule on single issues if agreement cannot be reached, but generally a collaborative approach is preferred, with family and healthcare professionals acting together.

Therefore if you want to choose someone to act for you in health and welfare matters, you should execute an LPA in their favour. It will not be used until and unless you become unable to make your own decisions.

If you plan in advance and execute LPAs, you also have the option of appointing more than one attorney and including back-ups in case they are unable to take on the role. You can talk things through in advance with them and explain what you would like them to do for you.

To speak to one of our expert solicitors, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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Client Testimonial

Client Testimonial…

When you lose someone you love it is always a difficult time. Having to deal with the paperwork involved in administering an estate after a death – and when you’re grieving – can be extremely upsetting.

That’s why at legalmatters we will always try to make the process as pain-free as possible for you – and why we’re always delighted to hear from a client when we’ve helped a family or an individual through such a stressful time. So thank you Jane for your kind words.

“Thank you and Megan, and all in the office staff for making my journey – sorting my dad’s estate through yourself and legalmatters – a professional, reassuring and stress free time. It’s been a pleasure and I would highly recommend you to friends.”

Choosing someone to act as your attorney

Signing a Lasting Power of Attorney (LPA) document authorises someone to deal with matters on your behalf, should you become unable to do so yourself.

There are two types of LPAs, one covering property and financial affairs and one covering health and welfare.

It is possible to ask your attorney to deal with your property and financial matters while you are still capable, for example if you have limited mobility and find it difficult to get to your bank. Your health and welfare matters can only be dealt with by your attorney once you can no longer make decisions for yourself.

You can choose to sign only one type of LPA if you wish.

Who should you appoint?

You should choose someone whom you trust implicitly, as they will potentially have a great deal of say over your life and financial affairs.

Your attorney needs to be aged 18 or over and in respect of a financial and property LPA you cannot appoint anyone who has been declared bankrupt or who is subject to a debt relief order.

If you do not feel that you have a family member or close friend who can act on your behalf, it is possible to appoint a professional such as a solicitor, who will charge a fee to deal with your affairs and who will be under a duty to act in your best interests.

Once your LPA is registered with the Office of the Public Guardian (OPG), your attorney will be supervised by them. This could include a visit to you or contact to ensure your attorney is acting effectively. After the first year it is likely that the supervision will be fairly minimal.

What your attorney needs to know

You should ensure that your attorney is happy to be appointed, and that they know what responsibilities this will entail. For example, they will be required to submit an annual report to the OPG explaining the reasoning behind the decisions they have made on your behalf and why they believe the decisions were in your best interests, as well as submitting financial details such as bank statements.

Give your attorney as much information up front as you can, letting them know what you will expect them to do for you and the scope of what they will be dealing with.

Let them think it through carefully and without pressure so that they can make the right decision. If they do choose to act, then discuss your wishes with them so that when the time comes, they will know how you would like them to proceed.

It is a good idea to have a second-choice attorney in place, in case your first-choice is unable or unwilling to act when you finally need them to.

If you would like to discuss appointing an attorney, call legalmatters on 01243 216900 or email us at info@legalmatters.co.uk.

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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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