Client Guide: Lasting powers of attorney
Problems can arise if you are no longer able to manage your affairs owing to an accident, illness or old age. For example, what will you live on? How will you pay your bills? Who will sign necessary documents for you?
It is possible to make arrangements for someone to look after your assets and financial affairs, either now or in the future if for any reason you are unable to do so personally. This can be achieved by signing a document called a lasting power of attorney (LPA).By this document you can appoint one or more persons, known as 'attorneys', to act either generally in relation to all your affairs or alternatively in relation to specific affairs. If more than one attorney is appointed it is possible to direct that they should act either together (in which case all attorneys must sign any document or make decisions) or together and independently in which case any of the attorneys may act as appropriate and convenient.
It is possible to direct that some actions may only be taken by all the attorneys acting together and that other actions may be taken by attorneys acting independently. We would however recommend that you take our advice if you intend the LPA to operate in this way. You may, if you wish, direct that the attorneys are to act in accordance with legally binding restrictions and conditions, or you may set out guidance (which would not be legally binding) for your attorneys to consider when acting for you. It is of course essential that you completely trust the attorneys you appoint as they potentially have very wide powers to deal with your assets.
The authority of the attorney to act is dependent upon the document being registered with the Office of the Public Guardian. The registration procedure normally takes about eight weeks. Your attorney may act for you while you retain capacity to manage your affairs and your attorney will also be able to act for you if you become unable to manage your affairs. In each case it is necessary for the LPA to have been registered before the attorney may act.
An independent person must complete a certificate, which forms part of the LPA to confirm that, in their opinion, you are making the LPA of your own free will and that you understand its purpose and the powers you are giving your attorneys. This is an important safeguard and your LPA cannot be registered unless the certificate is completed. A solicitor in this firm can be the independent person to provide the certificate.
If there is no lasting power of attorney…
...and you become incapable of managing your affairs through mental incapacity, an application must be made for a deputy to be appointed by the Court of Protection. A responsible person, usually a relative, is appointed to be the deputy to manage your affairs. The Court of Protection supervises the management of your affairs during the time that it is necessary to do so. The procedure is costly and time consuming and will often be distressing for the family in such circumstances. It should be noted that the application fee for the registration of an LPA is currently £110, whereas the application fee for the appointment of a deputy is £400.
How we can help
We can advise you in relation to all aspects of the preparation and use of an LPA. We are also able to advise in relation to applications to be appointed a deputy and the exercise of the functions of a deputy. We provide a complete legal service and can assist on related matters, for example, the sale of a property or financial and taxation matters.