This month's free tip - LASTING POWERS OF ATTORNEY (LPAs)

Whatever your age, assuming you are an adult, we would advise you to consider the possible benefits of making Lasting Powers of Attorney in favour of a member or members of your family (or someone else whom you consider suitable).

Although your Executors (if you have made a Will) are legally entitled to deal with your Estate in the event of your death, while you are alive no-one other than you (not even a spouse or other next of kin) normally has any power to deal with matters on your behalf (except in very limited circumstances) unless you have given them formal authority in a legally effective way.

If you own your home or other property (whether in your sole name or jointly with someone else) if you have savings or investments or run a business, no dealings with these assets can be completed without your signature or the duly authorised signature of someone else on your behalf. As a result, if you become (physically or mentally) incapable of dealing with your own affairs, without having given a Lasting Power of Attorney in relation to your Property and Affairs to someone, this could cause considerable difficulty and expense to you, your spouse, partner or next of kin. Arrangements for your medical treatment and personal welfare could also be hampered if you are unable to make decisions yourself or communicate your wishes clearly

The simplest way to guard against such difficulties is by a Lasting Power of Attorney.

Lasting Powers of Attorney (LPA) were introduced on 1st October 2007 under the Mental Capacity Act 2005 and replace Enduring Powers of Attorney. There are two types of LPA – one for dealing with Property and Affairs and one for dealing with Personal Welfare.

A Property and Affairs LPA will ensure that there is always somebody who has your authority to help with the day-to-day management of your affairs (including, for instance, signing cheques for you, completing forms or giving instructions to official authorities, solicitors or other professional service providers on your behalf), if you are incapacitated for some reason, whether temporarily or more long term.

A Personal Welfare LPA will ensure that there is somebody who has your authority to make decisions on your behalf (should you no longer have mental capacity) regarding all aspects of your health and personal welfare.

A Lasting Power of Attorney can be granted to a single attorney, to act alone, or to two attorneys on the basis that they will either act jointly at all times or can act jointly and independently (depending on your requirements). The authority given to your attorneys can be general (to do anything that you could do yourself) or limited to specific functions only. You can also impose conditions or restrictions on how or when your attorneys are to act. However, as we cannot tell what the future holds in store most people consider it best to give their attorneys general power to deal with all their affairs, without restrictions or conditions, to ensure that no difficulties arise that could otherwise have been avoided.

The Power of Attorney is called “lasting” because it continues to have legal effect even if you become mentally incapable. (By contrast, an ordinary Power of Attorney would automatically become null and void in that event, just when it could be most useful). A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian (for which there is a registration fee). This may be done as soon as the document is signed or at a later date but if your attorneys have reason to believe that you are becoming mentally incapable they must register the LPA then (if this has not already been registered) and this could involve awkward delays. Before applying to register the LPA, they must give written notice of their intention to do so to those persons you nominate in the document, who then have one month within which to lodge objections to the registration if it is considered premature or inappropriate for any reason. Your interests are therefore safeguarded against unnecessary registration or misuse of your authority.

The cost of making each Lasting Power of Attorney is normally £290 plus VAT but initial general advice is free of charge. Please therefore get in touch with us if you would like to discuss this further or if you would like more information about what is involved and the possible benefits.

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