What it’s worthwhile to learn about lasting powers of lawyer

What you need to know about lasting powers of attorney

Permanent power of attorney is a way of giving someone you trust legal authority to make decisions on your behalf if, at a later date, you are mentally ill or no longer want to make decisions for yourself. Of course, a pandemic forces people to think about their financial affairs and worst-case scenarios – and most people will think about what will happen after they die to make sure their wills are written or up to date . However, it is also very important to discuss your wishes in case you lose mental capacity.

It is not pleasant to imagine yourself in a situation where you are not in complete control of your personal affairs. The reality is that there are many diseases such as cancer or heart disease that can make us dependent on those around us. Statistics show that every 90 seconds someone with a brain injury is hospitalized in the UK. Such an event can lead to temporary dependence on our friends and family – and unfortunately there are unexpected incidents that can affect our ability to make decisions on an ongoing basis.

Everything you need to know about permanent powers of attorney

Lasting Powers of Attorney (LPAs) replaced the previous EPA (Enduring Power of Attorney) system. EPAs established before October 1, 2007 will still be valid whether or not they have been registered. However, they need to be registered when the person who issued the authority loses their capacity.

Two types of permanent power of attorney

Regardless of the size of your estate, anyone over the age of 18 can create an LPA. For the sake of clarity, your estate is essentially anything you own – bank accounts, annuities, stocks, stocks, property, insurance policies, and belongings.

There are two types of LPA:

Permanent Real Estate and Financial Powers: This gives you the power to appoint a person or persons (an “attorney”) who may make decisions regarding your bank accounts (i.e. opening, closing, using your bank and building society accounts) , Being entitled to, receiving and using your benefits, pensions and allowances, paying for your household, care and other bills, making or selling investments, and buying or selling your home.

Permanent Health and Care Authority: This allows you to appoint an attorney to make decisions on your behalf, such as: B. denying or consenting to health care (including life support), staying in your own home and getting help and support from social services, moving into home care, finding a good nursing home to everyday matters such as Diet, clothing or everyday life. However, your attorneys can only make decisions if you are unable to make those decisions yourself – and that is a very important distinction between this LPA and the real estate and financial LPA.

In order to use the powers of one of the two LPAs, they must be registered with the Office of the Guardian (OPG). The OPG charges £ 82 for processing an LPA application.

What if you don’t have permanent powers of attorney?

It is often believed that an immediate family member can easily stand up for them when a person loses their ability to manage their financial affairs. This is not the case (not even for a spouse) unless the appropriate documentation is in place. If in the future there comes a time when you do not have the mental capacity to make a particular decision and you have not created a valid LPA (or have an existing EPA), your assets will effectively be frozen and like you I can imagine that this can lead to problems with paying bills, obtaining pensions and other benefits, and making important decisions related to real estate and investments.

In this situation, someone (known as an “alternate”) would need to be appointed by the Court to make decisions for you, if you cannot do so yourself. There is a risk that this might not be someone you would have chosen – and it might even be someone you don’t know. Your loved ones can face long, onerous delays and costs in filing for control in the court, and the surrogate may not be able to understand the decisions you would have made if you kept your capacities would have. In addition, once appointed, the court oversees the work of the alternate and is required to submit annual financial statements showing how the patient’s money was spent. The court then charges an annual administrative fee based on a graduated fee.

What can you do now?

To avoid these problems, it is important to set up an LPA while you are still mentally capable, long before you need it. The most important thing to remember is that this will not make you lose control of your personal affairs. The Mental Capacity Act 2005 ensures that you can choose whether the LPA can be used either before or only when you are losing mental capacity. It is a fundamental protective principle of the Mental Capacity Act 2005 that any decision made on behalf of a person who lacks capacity must be made in their best interests. Every adult, regardless of their disability, has the right to make their own decisions wherever possible.

William Hadley

LLP partner

01962 679 771


For more information, please visit: parissmith.co.uk/our-people/william-hadley/


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