Powers of Attorney

Our team of wills and probate solicitors have considerable experience of advising clients on the mechanics of drawing up an LPA, including who to appoint as an Attorney (or Attorneys).

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Lasting Powers of Attorney

A Lasting Power of Attorney (LPA) allows someone of your choosing to act on your behalf, should there come a time when you can’t make decisions for yourself.

We manage all aspects of an LPA, from drawing up the document to registering it with the Office of the Public Guardian.

Lasting Powers of Attorney explained

You may or may not have prepared a Will dealing with the distribution of your assets upon your demise. However, a Will does not cater for a lengthy old age, when you may suffer from dementia, other medical disabilities or generally become increasingly frail to the point that you cannot get out and about.

To prepare for this eventuality, you should consider put a Lasting Power of Attorney in place. This is a legal document which allows you to appoint a person (or group of people) to act on your behalf. When you make a Lasting Power of Attorney, you are called the ‘Donor’. The person you appoint is called the ‘Attorney’.

There are two types of LPA:

  1. A Health and Welfare LPA, which allows your Attorney to make decisions about your health and welfare
  2. A Property and Financial Affairs LPA, which allows your Attorney to access your assets, and make decisions about your finances

You can have one or both LPAs in place at the same time.

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Why would you need an LPA?

No one has the legal authority to make decisions on your behalf, or to access your assets (other than the joint owner). This can put your family members in real difficulty, if you later lose mental capacity.

For example, care homes are frequently requiring both types of LPA to be in place. If they feel that there is no one to legally consent to the provision of care, they may require the state to intervene. The DVLA will not talk to you about your relative without a Health and Welfare LPA. Utility companies now ask to see a Financial LPA, if you want to sort out your relative’s tariff. And with the advent of GDPR (General Data Protection Regulations) you run the risk that care providers and authorities will only share personal information and data with a Welfare Attorney. Hospitals do not know who is family and who is not, unlike the local GP surgery, so they are reluctant to connect with those who want the best for their family member who may find themselves in a critical situation.

Things to consider

We would be wrong to suggest that a Lasting Power of Attorney should be made only by those of a certain age. There is always a possibility, for those who still consider themselves to be young, of being in an accident which will affect your mental abilities forever. A Property and Financial Affairs LPA can also be useful if you need someone to manage your assets while you are abroad or otherwise indisposed.

It is a common misconception that the Executors of your Will can act as an Attorney. There has to be a separate appointment under a Power of Attorney. Executors can only act when you have passed away.

Lasting Powers of Attorney can be changed or cancelled after they have been created, provided you are still able to make reasoned decisions, but you would need to contact us to carry this into effect. A Property and Financial Affairs LPA can come into effect straightaway, if you want it to. A Health and Welfare LPA will only be implemented, if and when you lose mental capacity.

The Law Society recommends that everyone should have both types of LPA in place. If you don't and you lose mental capacity, your loved ones would have to make application to the Court of Protection for a Deputy to be appointed. This is far more expensive and has ongoing fees and reporting repercussions. Additionally, it is almost impossible to get a Deputy appointed to make the decisions that could be made under a Health and Welfare LPA.

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Our LPA solicitors

If you would like to create an LPA, contact us at Aticus Law. We deal with all aspects of LPAs, including:

  • Drafting the LPA
  • Acting as a co signatory to vouch that you understand the nature and effect of the document and are acting free from undue influence
  • Registering the LPA with the Office of the Public Guardian
  • Advising the Attorneys of their responsibilities

Enduring Powers of Attorney

Old style Enduring Powers of Attorney (EPAs) are still valid and effective. These are similar to the new style Financial Powers of Attorney. If you have an EPA, you should still consider making a new style Health and Welfare LPA.

The old style powers do not need to be registered until the Donor loses their capacity to make decisions. At that time they need to be registered with the Office of the Public Guardian and we can assist in that process.

In all other respects they operate the same as Financial Powers of Attorney. They are effective once signed and until the Donor loses capacity. The registration makes them effective again after the loss of capacity.

Court of Protection

If someone loses mental capacity and does not have an LPA in place, a family member must make an application to the Court of Protection instead. This allows for one or two people to be appointed as a Deputy. A Deputy is similar to an Attorney, but they have some additional duties. They must make an annual report to the Court, pay annual fees and be supervised by the Court.

A deputyship application is time consuming and far more expensive than an LPA. In fact, it is to be avoided where possible. For this reason, we advise that Powers of Attorney should be put in place by our clients whatever their age.

If it’s too late and you need to make a deputyship application to the Court, we can help. Within the application process we need to record all investments and savings, income and benefits. It is not always possible to collate this information before the application is concluded as some banks and building societies will not divulge the information until the order appointing a Deputy has been made. A request has to be made to the GP or a private consultant, at a fee, to confirm that capacity has been lost and is unlikely to return. This information then has to be served on your relative, to give them an opportunity to contest the capacity report.

Free legal advice

If you are concerned that someone close to you is losing capacity to manage their own affairs, we offer a 30 minute free advice appointment to explore the options available. We are known for our sensitive and pragmatic approach.

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