Category Archives: Lasting Powers of Attorney

health and welfare LPA

Why is it important to create a Lasting Power of Attorney?

We are living in uncertain times. Apparently healthy people are dying or being left incapacitated as a result of contracting Covid-19.

If a person is left unable to assert their wishes once they have lost capacity, there is a fear that those acting on their behalf may not make decisions in line with the person’s beliefs.

The Society of Trust and Estate Practitioners (STEP) is calling on families to consider making Lasting Powers of Attorneys in order to take sensible precautions at such an uncertain time.

What is a Power of Attorney?

A power of attorney is a legally binding document where the creator (donor) gives the appointed person (attorney) the right to make decisions on their behalf if the donor loses capacity to make safe decisions themselves. Or, in some circumstances, the donor can pass the right to the attorney whilst they still have capacity.

A lasting power of attorney has no expiry and can be made via application to the Office of the Public Guardian and can be made to protect both financial and health matters.

Property and Financial Affairs LPA

This form of LPA will enable the attorney to help out with the management of bank accounts; paying all bills; collecting benefits and pensions and if needed, coordinating the sale of property.

Health and Welfare LPA

At such difficult times, many people have been struck down with incapacity and have faced unwanted time in intensive care as they battle the virus.

Having a plan already in place would help the medical community understand the best way to help your recovery whilst ensuring your express wishes are considered.

This form of LPA would enable the attorney to make decisions on your medical care; the life-sustaining medical treatments you may need; the medical care you receive and decisions on the care you receive concerning eating, washing or dressing.

The signing and witnessing of these documents can be made via post or by innovative ways to comply with social distancing measures such as witnessing on a doorstep, over a garden fence or through a window.

Services from legalmatters during Covid-19 pandemic

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, probate, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

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

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Lasting power of attorney

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document giving a person legal authority to make financial decisions or medical decisions on your behalf.

You can appoint a person to either make decisions regarding your health and welfare under a Health and Welfare Lasting Power of Attorney, which will cover things like medical treatment, where you will be treated, and even whether you should receive life-saving treatment (although this will need to be expressly declared in the document).  The only time this power can be exercised is when the person granting it has lost mental capacity.

For financial decisions a person can be appointed a Property and Financial Affairs Lasting Power of Attorney.  Under this the attorney may have access to bank accounts, power to buy and sell property and manage any financial obligations.  This power can be appointed to begin at any time you wish, for example immediately or if you lose mental capacity.

If you wish to make a Lasting Power or Attorney (LPA) then you must be over 18 and have mental capacity.  This means that you have the ability to make a decision, from mundane ones such as what to have for lunch, to important decisions such as where to live.

For most people, this will not be a difficult thing to prove or for it to even be questioned.  However, there is a two-stage test to ensure a person is deemed to have mental capacity:

  • Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?
  • Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to.

By consulting with a solicitor before making an LPA there is less chance of any problems later on, they will also be able to sign it as a certificate provider; a person that can confirm you have understood the implications of an LPA and you have not been put under any pressure to sign it.

There is no limit to the amount of people you can appoint, but issues can arise if you have many people trying to act on your behalf at once.  It is advisable however to appoint more than one in case the one person you chose to act is unable to do so for whatever reason, such as their own mental capacity, they cannot be traced when an urgent decision is needed or they die and you are no longer considered as having mental capacity.

If you appoint more than one attorney, this can be done so they act ‘jointly’, whether they have to make decisions together, or as ‘jointly and severally’ whereby they can make a decision on their own with or without the decision of the other.

You may also appoint a person to step in and act as a ‘replacement’ should another attorney be unable to act.

An LPA can help protect couples who have joint accounts that may be frozen if it becomes a concern, to a bank, that one may take control of the account if the other is deemed as having lost mental capacity.  In these cases, it can take months and costly legal proceedings to apply to the Court of Protection to become a ‘deputy’, acting as the legal representative for the mentally incapable partner.  This also means that an annual supervision fee will be payable to the Court as well as annual accounts prepared and a security bond.

LPAs can also be a very useful tool, especially to those who know they have a medical condition where they know they will be unable to make their own decisions, such as dementia.

Services from legalmatters during Covid-19 pandemic

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, probate, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

If you would like to speak to one of our expert Wills and Probate lawyers, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Mental Capacity

How to show mental capacity to make a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) can be an incredibly helpful way of allowing a person you trust to manage your affairs once you are no longer capable.

Ideally, an LPA should be executed well in advance of any incapacity. But so long as the person signing the document still understands its full meaning and effect, it is still possible for them to sign a valid LPA.

The benefits of an LPA

There are two different types of LPA, one in respect of health and welfare and one which relates to financial matters. By putting them in place while you are able to, your Attorney will be able to act on your behalf in the future, should you become unable to manage your own affairs.

A health and welfare LPA will only be activated once capacity has been lost. A financial LPA can be used before that time so that an Attorney can help someone manage their affairs, for example, by going to the bank on their behalf.

Proving mental capacity when making an LPA

With the onset of a degenerative disease, such as Alzheimer’s disease, many people realise that they will need an LPA to enable someone they trust to act on their behalf.

There will come a point when they lack the mental capacity to put an LPA in place, but at the onset of a degenerative disease there is often still time to arrange their affairs, provided they can demonstrate that they have sufficient mental capacity to understand the effect of the documents they are signing.

The Mental Capacity Act 2005 states that to have capacity to execute an LPA, an individual must have all of the relevant information about LPAs, be able to retain the information and be able to consider the information and make the decision to make an LPA.

No-one may influence them in their decision and they must be able to communicate it, even if it is only by movement or signs.

Once someone has been diagnosed with a degenerative disease, it is always advisable to have an assessment of their capacity carried out before the LPA is executed. This can be done by a GP or social worker, who can also witness the document.

If someone lacks the mental capacity to make an LPA, then their relatives can make an application to the court for a Deputyship Order. This can be a lengthy and expensive process with more ongoing costs than those associated with an LPA.

The best option is usually to sign an LPA well in advance of when it is needed. It does not need to be put into force until such time as capacity is lost.

If you would like to speak to an expert in LPAs and Wills, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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empty office

Where there’s a [need for a] Will, there’s a way [to get it signed]!

As we all get to grips with home working, home schooling and staying up until midnight to get a supermarket delivery slot, we are all becoming a more au fait with the ‘new normal’.

Like many other companies, we are seeing a surge in the number of clients who want to make Wills and those who are finally ready to provide those last few instructions that they have put on the back burner. We understand that there’s always something nicer to think about, something else that sits higher up the priority list – but, really, what’s more important than protecting our loved ones and making sure our wishes are followed in the event of a crisis?

Solicitors who make Wills and who need to therefore ensure the valid signing of those Wills are now classed as ‘key workers’. Good news. But, how do we cope with the draconian rules around signing? Well, where there’s a Will, there’s a way!

We are having to be creative here and our ability to engage with our clients over video conferencing helps us a great deal. We can fully address issues around mental capacity assessments and ensure clear taking of instructions so that we can be sure our clients’ Wills are valid and less likely to be challenged.

As our regulators grapple with potential changes in the law, we can provide advice relevant to your circumstances as to how best to sign your Will in the ‘presence’ of two (socially distanced) witnesses!

So, challenging times for us all – but here at legalmatters we are keeping our (latex gloved) finger on the pulse and are here to help.

If you would like to speak to an expert in LPAs and Wills, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

We hope you all remain safe and well.

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Coronavirus - LPA

Why a Property and Financial Lasting Power of Attorney is so helpful in times of crisis such as the coronavirus

A Property and Financial Lasting Power of Attorney (LPA) can be an incredibly helpful way of allowing a person you trust to manage your financial affairs if you are not able to do this yourself.

We are all witnessing how our massive sophisticated planet and civilisation can be brought so low by the tiniest organisms and are living through very challenging times.  We will also know people who are self-isolating and who are ill and these individuals are very vulnerable indeed and need all of the help they can get.  An LPA can provide just that help, enabling trusted individuals to carry out key tasks that may just be too difficult for individuals at the moment.

Ideally, an LPA should be executed well in advance of any period of illness or incapacity.  But so long as the person signing the document still understands its full meaning and effect, it is still possible for them to sign a valid LPA.

The benefits of a property and financial LPA

Trusted individuals can (as soon as the document is registered with the court) step into your shoes and carry on your financial life for you, involving you in all decisions but otherwise relieve you of the day to day burden of managing your financial life while coping with the crisis in hand.

The best option is usually to sign an LPA well in advance of when it is needed.  It does not need to be put into force until such time as capacity is lost but you will need to bear in mind that the court will take about 8 weeks to register a document and so the sooner you start the process, the better.

If you would like to speak to an expert in LPAs and Wills, ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Skeleton staff

Legalmatters continues to support its clients during trying times

Here at legalmatters, we continue to do everything we possibly can to service our existing and new clients during these very difficult times.

Our ability to provide remote services makes us stand out from the crowd.  This means that you can deal with your will, power of attorney, trust and tax advice etc all over the phone or by email and documents are sent to you by post.  We are also advising our clients on signature processes bearing in mind social distancing measures.

Meanwhile, the office continues to operate with minimal skeleton staff for the protection of our staff, clients and visitors, enabling us to still process physical documents for our clients.  If you do find that you need to call into the office for instance to have documents witnessed when it is otherwise difficult for you to arrange that with family and friends then do please get in touch.

You can ring us on 01243 216900 or email us at info@legalmatters.co.uk.

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Legal Power of Attorney

Preparing for the future with a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is an official legal document appointing someone to act on your behalf should you one day become incapable of managing your affairs.

There are two types of LPA, one for financial matters and one for health and welfare. You can have one or both in place. They do not have to be used immediately they are signed, but can be registered so that they are ready when needed.

What happens if you don’t have an LPA

If you do not have an LPA in place and you should one day be unable to manage your affairs or make decisions, then no-one automatically has the right to act on your behalf, even if they are close family members.

They would need to apply to the court for a Deputyship Order, which can be a lengthy process and is considerably more expensive than making and registering an LPA. As well as the initial costs of a deputyship application, there are ongoing charges including the annual supervision fee and annual security bond fee.

Putting an LPA in place

An LPA is a fairly simple document appointing someone you trust to deal with your affairs on your behalf in the event that you cannot do so yourself.

A property and financial affairs LPA

A property and financial affairs LPA can come into effect when you choose, so you do not need to wait until you no longer have the mental capacity to make decisions. This can be useful if, for example, you have mobility issues, as your Attorney could go to the bank and other financial institutions on your behalf.

You can word the LPA to give your Attorney the power to deal with all of your property, money and other assets or you can choose to limit it to certain specified transactions or accounts.

A health and welfare LPA

This type of LPA allows your Attorney to make decisions about medical treatment, care and other welfare issues.

You can opt to expressly give the Attorney the power to make decisions about life-saving treatment.

A health and welfare LPA can only be used by your Attorney once you are no longer able to make decisions for yourself.

Putting an LPA into force

An LPA needs to be registered with the Office of the Public Guardian before it can be used. By registering it straight away, it will already be in place when required. Otherwise there may be a delay of up to three months while the court processes the application.

If you would like help in making an LPA, speak to one of our expert lawyers on 01243 216900 or email us at info@legalmatters.co.uk.

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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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