We meet with many clients who are aware of the importance of Wills as part of the estate planning process however a good proportion of clients are not aware of the importance of Powers of Attorney. Not only is it important to plan your affairs after your death but also ensure that you have a plan for your affairs to be managed during your lifetime.
Some people have made historical Enduring Powers of Attorney (EPA) which relate only to financial and property affairs and, where these have been signed and completed correctly, these will still be valid. One restriction on EPA’s that many people are unaware of is that there is an obligation for attorneys to register the document with the Office of the Public Guardian if the donor (i.e. the person who granted the Power of Attorney) is becoming or has become incapable of managing their affairs. We can certainly advise clients further on this registration process and whether or not it is appropriate to consider registration.
Following changes in the law it is now only possible to make a Lasting Power of Attorney (LPA). There are two types of Lasting Powers of Attorney available, one relating to property and financial affairs and the other relating to health and welfare, and the best advice is now that both types of documents are considered. If a previous financial power of attorney has been drafted it will still be possible to make a health and welfare LPA in the future.
In general terms, the LPA sets out the parties you would trust to manage your affairs in the event that you became mentally incapable or physically unable of dealing with your affairs for your self, for example, through frailty, mental incapacity or general ill health. The document is therefore very useful as it can allow your attorneys to effectively dip in and out of assisting you whenever you require it in the future. If a time came where you lost mental capacity more permanently then those parties are already in place to assist you with your affairs.
An LPA would name the people you trust implicitly to manage your affairs and in the majority of cases this is a family member or a trusted friend. Some clients have chosen to appoint solicitors or other professionals to this role however there would usually be costs involved with this.
The LPA sets out how you wish for the attorneys to act, when the document will be used and can record any preferences or instructions that you have. In many cases the best advice is now to register the document at an early stage and then place it in store for safe keeping so it will be useful in an emergency.
The financial power would allow your attorneys to assist with such matters as managing your bank accounts, setting up direct debits, changing investments, paying bills, selling property and so on.
The health and welfare document allows your attorneys to make decisions regarding your general health such as what medication or treatment you may receive, where you should live, who visits you and so on.
Attorneys cannot do whatever they like once they are appointment to assist you, they must follow strict rules and these are set out in the Mental Capacity Act 2005 and regulations made under it. We can assist and advise attorneys if they have any questions regarding their actions when the document is being used.
The important thing to note about Lasting Powers of Attorney is that it is only possible to make the document whilst you understand it fully, and it is necessary for a party to give a certificate of capacity to confirm you have that required level of understanding. It is therefore advisable that Lasting Powers of Attorney are put in place as soon as possible so they can be completed and put safely in store ready for any unexpected event the future may bring.
We meet many clients and their families who have never heard of Lasting Powers of Attorney and unfortunately the opportunity to complete the document may have now passed. There is an alternative process which is more costly and takes longer to complete and this is a direct application to the Court of Protection for a Deputyship Order. Although this serves as an alternative and for many clients is the only option available, it is not the preferred option, not only due to the cost and timescale, but also because it takes the element of choice away from the donor. An LPA allows you to choose the people you trust to assist you and manage your affairs however a deputyship application can be made by any party. In some cases the Local Authority make such applications where a close family member or friend cannot be found to volunteer for the duty.
We have a specialist team that can meet with you and discuss Lasting Powers of Attorney in more detail and how they would assist you personally and we would be happy to meet with you to discus this directly. Wherever possible we quote fixed fees for this work so we would always make sure our fees were very clearly discussed with you during that meeting.
There are costs involved in submitting the documents to the Court when they are registered and we would discuss this with you directly, however, in some cases we can apply exemptions or reductions for clients depending on their own personal circumstances and this will certainly be considered during our meeting.
For more information or to speak to someone please call us on 01642 475252 or send us a message via our enquiry form.