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Why Should You Make Two Lasting Powers of Attorney?
A common perception is that it is only the elderly who lose mental capacity. You can in fact lose your mental capacity at any time in your life (e.g. through a serious car accident, or mental illness).
A second common perception is that your family can make decisions on your behalf should you lose your mental capacity. But this is not correct. Without the appropriate legal document (i.e. a Lasting Power of Attorney) you will find that your preferred family member has little say in your health and welfare (and especially so if you are unmarried), and will almost certainly have no say in your financial affairs.
If you lose your mental capacity the Mental Capacity Act 2005 is quite clear: It says that if you did not make an appropriate LPA and you lost your mental capacity than the Court of Protection would appoint a ‘Deputy’ for you.
That deputy could be the Director of Social Services (in which case Social Services take over your affairs) or it could be a member of your immediate family if they apply direct to the Court of Protection for a Deputyship order.
How Much Would It Cost for My Family to Become My Deputy?
Costs vary depending upon the circumstances of the person who has lost their mental capacity - but we have heard of figures between £2500 and £5000. In addition there are ongoing annual costs.
The application for a ‘Deputy’ is long and intrusive. Full financial details of the donor and the deputy have to be provided to the Court.
Obtaining a Deputyship Order in respect of the health and welfare of a person is very difficult.
Due to the high costs of obtaining a Deputyship Order many families do not obtain them, but instead feel helpless as they are unable to assist their vulnerable relative.
The Solution
The best solution is to put into place both Lasting Powers of Attorney now, while you have the capacity to do so.
By so doing you will enable the people you trust (e.g. your spouse and/or your adult children) to make decisions on your behalf when you are no longer in a position to do so for yourself.
Hopefully the documents will not actually be needed, and in which case you will have wasted the fees paid for the production of the documents. But those fees are small in comparison to the Deputy fees, and the peace of mind knowing that your family will be able to make decisions on your behalf.
On the other hand if they are required then you, and your family, will be very glad you pay the expense to have the documents in place.
The reason you need to make two LPAs is because there are two different types of Lasting Part of Attorney – each covering the different aspect of your affairs. For more details click on the menu above.
Can I Place Restrictions on My Attorneys?
Yes, the both LPA documents allow for the inclusion of both restrictions and guidance notes for an attorney.
Care is needed when making these to ensure that a ‘restriction’ is a restriction, and a ‘guidance note’ is a guidance note. Sometimes the Office of the Public Guardian will reject the application to register and LPA because the wording of a restriction or guidance note is not appropriate.
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.
2 Powerful Reasons Why You Should Make Your Lasting Power of Attorney
Lasting Powers of Attorney are powerful legal documents.
Every adult in England and Wales should make two of them:
- a Lasting Power of Attorney -
Property and Affairs; and - A Lasting Power of Attorney – Health and Welfare.
The Process for Making an LPA
Each LPA comprises three parts – Part A, B, and c.
The donor completes part A in which he/she sets out who his/her attorneys and replacement attorneys are to be.
Restrictions and guidance notes can also be included. The document must also state who is to act as the Certificate Provider and who is to be the ‘Person to Be Notified’.
The Certificate Provider completes part B, certifying that in their opinion the donor was of sound mind when they made the document.
Then each attorney completes part C, agreeing that they will act as the attorney for the donor.
All signatures must be witnessed.
Once the document is complete it must be registered before an attorney can act under the LPA. To register the document it must be forwarded to the Office of the Public Guardian.
When applying for registration evidence of income must be forwarded to support any claim for a the exemption or remission, and a letter must be sent to the person to be notified.
Assuming everything is in order the Office of the Public Guardian will register the document and return it to the applicant in due course.
What Is There to Stop My Attorney Abusing Their Position?
All LPAs are governed by the Mental Capacity Act 2005.
This act stipulates the principles that an attorney [or deputy] must follow. These are: –
- An attorney must assume that the incapacitated person can make their own decisions unless the attorney establishes that they are unable to do so.
- The attorney must help the incapacitated person to make as many of their own decisions as they can. The attorney cannot treat the incapacitated person is unable to make the decision in question unless the attorney has taken all practicable steps to help the incapacitated person to do so but without success.
- The attorney must not treat the incapacitated person is unable to make the decision in question simply because the incapacitated person makes an unwise decision.
- The attorneys must make decisions and act in the best interests of the incapacitated person when the incapacitated person is unable to make the decision in question.
- Before the attorney makes the decision question or acts for the incapacitated person, they must consider whether they can make the decision or at in a way that is less restrictive on the incapacitated person’s rights and freedoms but still achieve the purpose.
The attorney of a Lasting Power of Attorney – Property and Affairs cannot spend the donor’s money with ‘gay abandon’. They must be mindful of the Mental Capacity Act 2005.
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.