Lasting Powers of Attorney

No decisions about you, without you

Lasting Powers of Attorney (LPA's) provide a way to nominate others to make decisions for us when we are unable to make decisions for ourselves.

There are many reasons why we may not be able to make a decision for ourselves from something as simple as being on holiday abroad to not having mental capacity.

There are two different types of LPA, as well as an LPA specifically for businesses, each one covering different circumstances. In all cases you appoint trusted people to act on your behalf, but the decisions they can make and when they can make them differ.

1

LPA for Health & Welfare

What decisions can be made?

The people you appoint can make decisions on your behalf in relation to all personal matters. This includes:

  • Where you live
  • Who you see or don't see
  • If or where you go on holiday
  • Your everyday dress and diet
  • Access to medical records and other personal correspondence
  • The ability choose whether you receive medical care or intervention

When can decisions be made for me?

This LPA can only be used when you have lost mental capacity as determined by the Mental Capacity Act 2005

2

LPA for Property & Financial Affairs

What decisions can be made?

The people you appoint can make decisions on your behalf in relation to all financial matters. This can include:

  • Operating bank & building socient accounts
  • Dealing with pension, tax and benefits
  • Making gifts, for example at Christmas or birthdays
  • Paying household expenses and other bills, etc.

When can decisions be made for me?

Normally people only think of LPAs as making decisions when you have lost mental capacity. This is not the case for this type of LPA and the people you appoint can make decisions for you for many reasons, even when you still have mental capacity such as when:

  • You are holidaying abroad
  • Your eyesight or hearing is failing
  • You have a lack of mobility
  • You have been hospitalised
3

LPA for Business Affairs

Most businesses, irrespective of their structure, will have an ordinary Power of Attorney, allowing a competent representative to act on their behalf if for any reason they themselves cannot act. However, what most business owners do not realise, is that this ordinary Power Of Attorney does not continue if they have lost mental capacity. Being a business owner, or company director is an incredibly stressful vocation. If an owner or director was to suffer from mental illness and had to take time off from their position, nobody can legally take their place unless that person had a Business Lasting Power of Attorney, which does continue in the event of mental illness or incapacity.

Since the Mental Health (Discrimination) Act 2013 came into force, company directors can no longer legally be removed in the event that they have lost mental capacity, which puts incredible strain on the remaining directors, not to mention the actual mechanisms within the business, particularly if the affected director is a person of significant control (PSC), or for example, is required as a co-signatory for financial transactions.

The only way to ensure continuity in a business, is to undertake Business Lasting Powers of Attorney, and appoint a suitable representative to act on your behalf. Appointment of attorneys is crucial, they must have the requisite business acumen to ensure profitability pursuant to the Companies Act. Care must also be taken to appoint someone of equal standing, particularly where a director is in a regulated industry, such as a Solicitor, Accountant, or Financial Advisor etc.

For a confidential assessment of your circumstances, call 01925 321 231 or email enquiries@elliottgeorge-ep.com.

Frequenty Asked Questions

It is not uncommon for people to take out both LPA's. Our friendly experts at Elliott-George will help you decide what is best for you.

In order to undertake LPA's, the person applying (known as the donor) must have mental capacity. If it has been established that the donor no longer has the requisite mental capacity to apply for LPA documents, a separate process needs to be undertaken by the proposed attorneys.

This process involves making a direct application to the Court of Protection and is known as applying for a "Deputyship Order". It is complex, taking on average 9 months to complete, and costing an average of £3500. It must be stated that not all applications for Deputyship Orders are successful, and the Court can refuse an order, even between spouses.

If successful, the Deputyship Order has to be renewed and a set of accounts produced annually, which results in a yearly fee of approximately £750.

It is therefore much better to plan ahead for the "what if?" situation, than take a risk and potentially be far worse off later on.

If you do not make an LPA and it is deemed that you no longer have sufficient mental capacity to properly look after your own welfare, decisions regarding your welfare will be taken away from. And even your children may not be able to make these decisions for you. For example, we often meet clients who say "I'm not going into care, my kids won't let that happen!" but Local Authorities have the power to use legislation to remove people from their homes and put them into local authority care. Without an LPA, your children are unable to prevent this.

At Elliott-George Estate Planning we offer a very competitive fee of just £225.00 per LPA, or a discounted fee of £400.00 when both LPA's are purchased at the same time.

You will also need to pay a fee to the Office of the Public Guardian (OPG) to register the LPA. This is a fixed fee of £82 per LPA and is paid directly to the OPG by you or your nominated attorneys.

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