Lasting Powers of Attorney

Monday, 17 August 2015

What is a Lasting Power of Attorney?

Lasting Powers of Attorney are legally binding documents allowing someone (the donor) to give person(s) (the Attorneys) the authority to deal with their affairs if they are unable to do so, due to physical or mental incapacity.

What is a Lasting Power of Attorney?

Lasting Powers of Attorney are legally binding documents allowing someone (the donor) to give person(s) (the Attorneys) the authority to deal with their affairs if they are unable to do so, due to physical or mental incapacity.

There are two types of Lasting Powers of Attorney:

  • Health & Welfare

  • Property & Financial Affairs

Property & Financial Affairs

A Property and Financial Affairs LPA will allow the donor to appoint Attorneys to make decisions on their behalf regarding property and financial affairs. These Lasting Powers of Attorney can be used to assist the donor if they are physically or mentally incapable of dealing with their own affairs. This document can also be used as an ordinary power, for cases whereby the donor would just prefer someone else to manage matters on their behalf.

Examples of such decisions include:

  • Buying/selling property

  • Giving access to the donors financial information and operating financial accounts

  • Claiming, receiving and using benefits and pensions on the donors behalf

  • Dealing with the donors tax affairs

  • Paying the mortgage, rent and household expenses

Health & Welfare

A Health and Welfare LPA allows the donor to appoint Attorney(s) to make personal and medical decisions on their behalf. These LPAs can only be used if the donor has lost mental capacity.

Examples of such decisions include:

  • Where the donor should live and who they should live with

  • The donors day to day care and activities

  • Consenting to or refusing medical examinations and treatment

  • Arrangements for medical, dental or optical treatment

  • Assessments for and provision of community care services

  • The donor’s personal correspondence and papers and rights of access to personal information about the donor

In addition to the examples stated above, both Lasting Powers of Attorney allow the donor to state any guidance, conditions and restrictions for their Attorneys whilst making such decisions.

What happens without a Lasting Power of Attorney?

If someone loses mental capacity without having a LPA in place, it has become increasingly difficult and often impossible for anyone to be able to deal with their affairs. This can not only increase stress at an already distressing time, but it can also mean family members having to foot the bill for any care costs or bills, due to being unable to access bank accounts or sell property.

In order for someone to obtain the power to deal with such affairs they would need to apply to the Court of Protection for a Deputyship Order. This order is similar to an LPA, allowing the court to grant the powers to the applicant, however the process is extremely expensive and can take many weeks to complete.

Deputyship Order current costs are:

  • Initial application - £400

  • Further application cost £100

  • Annual supervision fees are between £0 - £800

  • Additional court costs for financial transactions outside of the initial agreement

  • Potential hearing and appeal costs of £400 or £500

The process of obtaining a deputyship order includes completing 4 – 5 extensive forms and ensuring each step of the process is carried out within the Court of Protections strict timescales. In addition to this, even once the deputy has been granted their power, they must continue to submit accounts to the court each year, stating the transactions made on behalf of the donor.

Overall, it is clear that the most effective way of ensuring our affairs are dealt with, without incurring extensive costs and further delays, would be to create Lasting Powers of Attorney whilst we have the mental capacity to do so. We all like to be in control of our own affairs during our lifetime, therefore it seems essential to ensure we have made provision for someone else to do so when we are unable to.