If you are dealing with the estate of someone who has died, you need to check whether any of the beneficiaries have been declared bankrupt. If you mistakenly distribute part of the estate to a bankrupt beneficiary, the trustee in bankruptcy could bring a...
There may come a time when you no longer wish, or are no longer able, to make decisions and deal with your affairs yourself. A registered Lasting Power of Attorney (or LPA) is a legal document that allows your chosen attorney(s) to assist you with managing your affairs, act on your behalf and make decisions for you. The inability to act for yourself may not necessarily be due to dementia or another mental health illness but could perhaps be the result of a stroke or accident.
Lasting Powers of Attorney
You must choose your attorney(s) carefully because they will be making important decisions about your health & welfare or financial & property affairs that you would normally make for yourself. You can appoint more than one person and, if you wish to, you can limit the extent of their power by placing restrictions and conditions when the Lasting Power of Attorney is prepared. When a Lasting Power of Attorney application is prepared, you are asked if you would like anyone to be notified before it is registered. This gives people who know you well an opportunity to raise any concerns or objections.
You are not required to register a Lasting Power of Attorney immediately, but it cannot be used until it is registered and it can take between 10 and 20 weeks for the application to be finalised. We therefore always strongly advise that Lasting Powers of Attorney are registered as soon as possible so that they can be used immediately, if necessary.
Guidance for Attorneys
We also offer an Attorney Support Service to guide and support attorneys in their role.
Enduring Powers of Attorney
Enduring Powers of Attorney (or EPAs) are the documents which used to be put in place to enable someone to deal with your property & financial affairs, before LPAs were introduced in 2007.
EPAs were not as flexible as LPAs, and the process of preparing the documents did not provide as much protection for the person making the power (the donor), as is now provided by LPAs. There are many more checks and safeguards in place with the Lasting Power of Attorney process, including the role of a Certificate Provider, an opportunity to notify people of registration, and registration being required before the documents can be used.
In addition, EPAs could not be created to give someone the power to make decisions relating to a person's health & welfare. It was only possible to make an EPA dealing with property & financial decisions, whereas there are two types of LPA; one dealing with property & finances, and the other dealing with health & welfare.
Registering Enduring Powers of Attorney
Whilst EPAs can no longer be made, any EPAs which were validly created before 1 October 2007 should still be valid and useable. The registration process works differently with EPAs, and any attorneys acting under an EPA have a duty to apply to register the document if they believe that the donor has lost mental capacity, or is beginning to lose mental capacity to manage their own affairs.
The EPA registration process is quite complicated and requires a number of people to be notified, and for various forms and documents to be prepared and sent to the Office of the Public Guardian and other parties. At BakerLaw, we can advise upon and assist with the registration of Enduring Powers of Attorney. We would usually charge for this work on a fixed fee basis, with our current fee being £800 + VAT and disbursements, for the whole process.
If you are an attorney appointed under an EPA, and you are uncertain as to when you should register an Enduring Power of Attorney, please contact us at firstname.lastname@example.org or on 01252 733 770 and we will be happy to advice upon and assist you with the registration process.
Power of Attorney FAQs
What is a Health and Welfare Lasting Power of Attorney?
This can only be used when it has been registered and the donor has lost mental capacity. Your attorney(s) will make decisions about such things as where you live, and your day-to-day and long-term care. When your Lasting Power of Attorney is prepared, you must decide whether to give your attorney(s) the authority to accept or refuse life sustaining treatment on your behalf.
What is a Property and Financial Affairs Lasting Power of Attorney?
The powers that your attorney(s) will have under this type of LPA could include buying and selling property, operating bank accounts, making investments and paying bills on your behalf. Unlike the Health & Welfare LPA, this can be used before the donor loses mental capacity as long as it has been registered. We would recommend that your LPA is safely stored with your Will until it is required.
Can someone with dementia make a Lasting Power of Attorney?
It depends. Even if someone has been diagnosed with dementia it doesn’t necessarily mean that they are no longer capable of creating an LPA. To create a legally binding Lasting Power of Attorney, the most important aspect is that the person creating it must understand what they are signing and the implications of creating such a document. We are experienced in assessing if someone has capacity to create a Lasting Power of Attorney and can discuss this further with you.
If it is not possible to create a Lasting Power of Attorney, because the donor does not have sufficient understanding of the decisions and considerations involved, someone can apply to the Court of Protection to be a Deputy. A Deputy plays a similar role to an Attorney appointed under an LPA, however their powers are much more restricted, and the process for obtaining a Deputyship is much more costly extremely lengthy. For these reasons it is advisable to have a Lasting Power of Attorney created and registered whilst the donor still has the mental capacity to do so.
If a Court of Protection application is the only option, we can advise on and prepare such an application on your behalf.
Other common queries
- What is involved in the process of setting up an LPA?
- What happens if someone loses capacity and they do not have an LPA?
Contact our power of attorney solicitors in Farnham, Surrey
Our focus is always to provide you with peace of mind — for Wills, Powers of Attorney, Trusts and Probate advice you can rely on, contact us online or at our Farnham office on 01252 733770.
The Hidden Cost of DIY LPAs