Category Archives: Lasting Powers of Attorney

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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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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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