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Overview – Lasting Power of Attorney -
The Lasting Power of Attorney (“LPA”), once registered with the Office of the Public Guardian, can be used by your attorneys to enable them to look after your financial affairs. This includes making investments on your behalf, and running your bank accounts.
Your attorneys (and replacement attorneys) are governed by the Mental Capacity Act 2005 when making their decisions. They are accountable to the Office of the Public Guardian/Court of Protection.
The Court of Protection do take legal action where they think an attorney is abusing their position. This has resulted in attorneys going to prison.
Attorneys and Replacement Attorneys
The LPA – Property and Affairs allows you to appoint attorneys and replacement attorneys. The replacement attorneys take over from your attorneys when your attorneys are unable or unwilling to act for you.
You must also stipulate (if appointing more than one attorney or replacement attorney) how your attorneys are to work together. i.e. are they to work jointly and severally, or jointly, or jointly and severally for some aspects and jointly for others.
When making your selection you need to be aware that some arrangements work better than others. If using our home visit service we will give you advice so that you have the most effective setup.
Restrictions and Guidance Notes to Your Attorneys
The LPA – Property and Affairs allows you to impose specific restrictions upon your attorneys and replacement attorneys. You can also give them guidance notes as to how you wish your financial affairs to operate.
Care is needed with the wording of these restrictions and guidance notes. If the Office of the Public Guardian consider a guidance note to be a specific restriction you risk the registration of the LPA being declined. Similarly, if you insert any restriction which the OPG considers is impractical they will either delete the restriction or (in the worst case scenario) refuse to register the LPA.
If you use our home visit service we will give you advice on this topic, and create the appropriate wording for you.
Certificate Provider
A third party will need to certify that you have mental capacity at the time of making the LPA Property and Affairs.
It is possible to use a friend but there is a significant risk that the LPA will be rejected at the time of registration. A better course is to use a professional.
We have acted as the certificate provider to many hundreds of LPA – Property and Affairs.
Person to Be Notified
You will need to nominate a at least one person to be notified at the time the LPA Property and Affairs is registered.
If using our services we will give you guidance on this topic.
Can I Make My Own Lasting Power of Attorney?
The document must be made in a prescribed format. Forms can be downloaded from the government website – please see our links page for details.
In theory the forms are designed for the general public to complete. However many people approach us to help them make the forms for them in view of the amount of typing required, the need for a Certificate Provider to certify that the donor is of sound mind, and the risk of completing the forms incorrectly with the consequences that might entail.
Why should I use Convenient Wills to help make my LPA?
We have significant experience of making and registering Lasting Powers of Attorney - so we save you a significant amount of time researching how to make these documents. If you put a price on your time saved you will see we offer good value. In addition we have high quality paper and an appropriate printer to print the documents off, scanner to make copies for you, and we act as your ‘certificate provider’ also.
What everybody ought to know about Property and Affairs LPAs
Lasting Powers of Attorney – Property and Affairs are powerful legal documents.
Every adult in England and Wales should have one.
They allow you to appoint people to make decisions with regards to your financial affairs should you ever you lose mental capacity.
If you want a family member to make decisions about the medication you receive, and where you live, in the event of you losing mental capacity, you must formally appoint them as your attorneys.
Real Life Examples
Example 1: Mr Jones, father of the proprietor of Convenient Wills, was sectioned under the Mental Capacity Act.
When admitted to hospital he was wearing a gold watch and a gold ring. Quite rightly the hospital staff took those items of valuable jewellery into custody.
The problem came when his wife and son requested their return. The request was politely declined, with the explanation that we (Mr Jones is wife and son) had no authority to deal with his financial affairs.
Fortunately Mr Jones had previously made an Enduring Power of Attorney (which was the forerunner to the Lasting Power of Attorney – Property and Affairs). We fetched this from home, and showed it to the hospital administrator -
Example 2: My clients rang me up to thank me (the proprietor of Convenient Wills) for persuading their parents of the need to make Lasting Powers of Attorney. Apparently their mother had lost mental capacity and was assessed by the NHS for care costs. My clients were initially advised that the mother qualified for care under the NHS, only for that statement to be rescinded shortly thereafter.
As my client’s mother had made an LPA Property and Affairs appointing my clients as her attorney, my clients were able to demand sight of paperwork relating to the assessment. They were then able to have the second decision rescinded, and my client’s mother receives care under the NHS. Had they not had the LPA Property and Affairs they would not have been able to challenge the second decision.
Example 3: My client’s mother suffered a stroke. As a consequence she lost mobility in all her four limbs and therefore had to go into a care home. Her children tried to help – mother wanted to sell her house (Social Services were insisting upon that – to fund her care costs), and to stop the unnecessary payments being made from her bank account in relation to the property. Unfortunately her bank, utility firms, and estate agents would not except the children’s instructions as they lacked formal authority from the mother.
We took instructions from our client’s mother and ultimately obtained the registered LPA Property and Affairs. My clients and their mother were then able to move matters forward much to the relief of everyone.