Lasting Powers of Attorney - Should I have one?
Following a change in the law on 1st October 2007 Enduring Powers of Attorney have been replaced by Lasting Powers of Attorney. However Enduring Powers of Attorney made before this date remain valid and can still be used by the attorneys appointed by them.
A Lasting Power of Attorney is a document that allows a person (the Donor) to choose someone they trust to make decisions about such things as their finances (Property and Financial Affairs Lasting Power of Attorney) or their healthcare (Health & Welfare Lasting Power of Attorney) on their behalf if they should lose the mental capacity to make those decisions for themselves.
Why should I consider a Lasting Power of Attorney?
Lasting Powers of Attorney are a sensible way of planning in advance for future incapacity. There may come a time when, through an accident, illness or infirmity, you are unable to deal with your affairs. By making a Lasting Power of Attorney you are able to choose your Attorneys and give guidance on how you wish them to look after your affairs. This enables you to maintain some control at a time when you may otherwise feel that you are losing control. The Lasting Power of Attorney need not be used immediately and can be put to one side, until it is needed.
What if I do not have a Lasting Power of Attorney and I cannot look after my affairs?
If a person does not have a Lasting Power of Attorney or an Enduring Power of Attorney and loses their mental ability to look after their affairs it may be necessary for a member of their family to apply to the Court of Protection to be appointed to act as their Deputy. Once appointed the Deputy can act in the same way as an Attorney. However the costs involved tend to be significantly higher and there can also be considerable delays.
Things to be considered when making a Lasting Power of Attorney:
Attorneys
Attorneys should be someone you can trust who is over the age of 18 and who is capable of taking on this responsibility. You can have up to four Attorneys.
Who you wish to be notified
You can name up to 5 people to be notified if your Attorney(s) decide that the time has come for them to look after your affairs. This provides you with extra protection as it enables these people to raise objections to the application if they do not feel that registration is in your best interests.
Guidance for your Attorneys
You can offer guidance to your Attorneys to be considered when dealing with your affairs.
Certificate Provider
You must choose a certificate provider (or two certificate providers if you do not wish to name any person to be notified of an application to register your Lasting Power of Attorney). A certificate provider must discuss the Lasting Power of Attorney with you and make sure that you understand the purpose of the document and the scope of the Attorneys authority under it. They must also confirm that no fraud or undue pressure is being used to persuade you to create the Lasting Power of Attorney and that there is nothing else that should prevent the Lasting Power of Attorney being made. This is an important safeguard as the certificate provider independently verifies the circumstances in which you are making the Lasting Power of Attorney. The certificate provider cannot be one of your Attorneys and cannot be a member of your family. Certain people have the necessary skills to be a Certificate Provider e.g. a registered healthcare professional (including a GP); a registered social worker, your legal representative (your legal advisor at Langleys can be your certificate provider, unless you are appointing the partners at Langleys to be your attorneys); an Independent Mental Capacity Advocate. Alternatively someone who has known you for at least 2 years e.g. a friend or a neighbour, can be your Certificate Provider.
Registration
Before your Attorney or Attorneys will be able to use your Lasting Power of Attorney it will need to be signed by you and your Attorneys, witnessed and then registered with the Office of the Public Guardian. There is a Court fee of £130 payable to register a Lasting Power of Attorney. However if your annual income is less than £12,000 or you are in receipt of a means tested benefit you may be exempt from paying this fee.
Costs
Langleys' fees for the preparation and execution of a Property and Affairs Lasting Power of Attorney will be £450 plus VAT. If you also wish to make a Personal Welfare Lasting Power of Attorney at the same time the fee for the preparation and execution of both Lasting Powers of Attorney will be £650 plus VAT. Our costs for attending to the registration of a Lasting Power of Attorney will be £500 plus VAT. Our costs for attending to the registration of both a Property & Financial Affairs Lasting Power of Attorney and a Personal Welfare Lasting Power of Attorney will be £650 plus VAT. However if you instruct us to prepare and immediately register a Lasting Power of Attorney our costs can be reduced to £750 plus VAT. If you instruct us to prepare and immediately register both types of Lasting Power of Attorney our costs can be reduced to £1,000 plus VAT. Please note that there is a registration fee of £130 payable for each Lasting Power of Attorney unless you are entitled to an exemption from this fee.