An Attorney is an individual appointed to manage the affairs of a Donor, the person who has ‘made’ the Lasting Power of Attorney. You may find that you have been asked to act as Attorney in a “property and affairs lasting power of attorney” or a “personal welfare lasting power of attorney”. Both are important roles which carry legal obligations. Here’s what you need to know.

A Lasting Power of Attorney (LPA) must be registered with the Office of the Public Guardian before it can be used. If it’s left unregistered, the Attorney will have no legal powers to make decisions on behalf of the Donor.

How to register Lasting Power of Attorney

The LPA can be registered by the Donor, whilst they have the capacity, or the Attorney can apply to register the LPA. This can happen at any time. The Attorney will need to complete a couple of forms (LPA001 and LPA002) and send these to the Office of the Public Guardian along with the signed LPA and the fee.

Property and Affairs LPA

A Property and Affairs Attorney can be act before the Donor loses mental capacity, if that’s what they, the donor, wishes to happen. However, an Attorney for Health & Welfare may only act once mental capacity of the Donor has diminished. The Donor or the Attorney has a duty to to notify any named persons if they apply to register the LPA. There will then be a statutory waiting period of 42 days as set out by the Office of the Public Guardian. Be aware of this so you don’t get any nasty shocks should you find yourself with this responsibility.

Being an Attorney is a role which carries certain responsibilities and powers. If you are unsure about your powers, or what you should and shouldn’t be doing once you find yourself in this role, do seek professional guidance and support. We would be happy to assist you and have a great deal of experience in this area.

You can listen to my latest podcast here. If you missed the podcast “Why Have a Lasting Power of Attorney”, be sure to check it out.

You can listen to my latest podcast here

You can listen to the podcast here.

Did you know the Office of the Public Guardian (OPG) has recently tightened up regulations surrounding Lasting Powers of Attorney (LPAs)?

Lasting Power of Attorney

A Lasting Power of Attorney is an important document for you and your nearest and dearest to have, but it’s now more crucial than ever that you ensure your LPA is legally binding.

In a recent case, one of the Attorneys of the LPA in question hadn’t signed the document within a one-year period of the Donor signing. When it came to registering the LPA, the OPG refused to register it in its entirety, only allowing the Attorneys who had signed within the year to act.

The confusion seems to be over the OPG’s previous wording governing signing of LPAs. In the past, the OPG stated all Attorneys should sign within a “reasonable time frame”. The OPG have since decided that this, in fact, means 12 months or less. But they haven’t published this ruling widely and, as a result, many consumers are finding the matter confusing and frustrating.

Another tip we can give you is to ensure that all Attorneys signing your LPA have their signatures properly witnessed. In one recent case, this was judged to have not happened and the OPG asked the Attorney to sign the section again. However, by the time this administrative task had happened, the period of time elapsed totalled more than 12 months, and so the LPA was registered without that one Attorney being able to act.

Advice for water-tight Lasting Power of Attorney

An LPA may be one of the most important legal documents you will ever put in place, and it’s important to have the best guidance possible. Here are our top tips:

- ensure all parties sign the LPA as quickly as possible, and certainly within 12 months

- make sure all parties have their signatures witnessed

- get expert guidance when it comes to LPAs.

We can help clients in Kent and across the South East. Please do call if you have any queries or doubts about your legal documents.

We read in the Mail Online on 30th September that a High Court has ruled in favour of sedating a mentally-ill woman so she can have life-saving surgery – even though she has stated she does not want it.

This story throws up a lot of interesting and challenging issues, and we’d love to know what you think about it.

The 69-year-old woman who has schizophrenia has been under the care of the mental health services since she was in her 40s. Her mental condition leads her to believe that her physical condition – a prolapsed womb – does not require any treatment. Her feelings towards medical intervention mean she won’t go to hospital voluntarily and does not want to co-operate with the operation.

However, Doctors argued in court that her condition is serious and, if left untreated, could result in complications including kidney failure. Ultimately, they say, the condition and its complications could kill the patient. In a rare legal case, consultants applied to the High Court’s Court of Protection for permission to sedate the woman and perform a hysterectomy.

The Judge presiding over the case found in favour of the medics and ruled that the operation should go ahead, with permission being granted for Doctors to give the woman a general anaesthetic up to six days prior to the operation, so she could not stop it going ahead.

The Barrister representing the woman supported the ruling, saying the operation was in the patient’s best interests and that High Court intervention was necessary.

What do you think? Should the courts get involved, or should the patient’s right to self-determination always come first?

Do you have a Lasting Power of Attorney? Do your parents? It really is an important legal document to have, as this story (originally in the Daily Mail) http://www.dailymail.co.uk/money/article-1269290/Lawyers-charged-frail-Alzheimers-couple-pound-44-400.html?printingPage=true) shows.

After Feliks and Rosemary Zakrzewski developed Alzheimer’s disease in 2005, they went to live with their daughter. But that didn’t matter to the Court of Protection. Because they had no Power of Attorney, lawyers were instructed (by the Court of Protection) to look after their finances. The “deputy”, as lawyers are referred to in these instances, charged an incredible £44,400 in fees.

The Zakrewskis’ family could do nothing as the case unfolded, because deputies are only answerable to the client and, in this case, the client was the couple themselves, both of whom had Alzheimer’s and didn’t understand. The solicitor in this case, the Daily Mail reports, ran up charges of just under £19,000 in ten months (charging £200 an hour) and gave the couple’s daughter £70 a week to pay for living costs. After ten months, the couple’s daughter asked the Office of the Public Guardian (which oversees deputies), to look into the case. Deputies’ fees are assessed by the Supreme Court Costs Office.  Guidance on Court of Protection costs states that general management costs are ‘unlikely to exceed’ £3,000 a year but it costs more than £1,000 just to have a deputy appointed, and then there will be annual charges.

What’s the best way to avoid such a nightmare happening within your family?

Get a Lasting Power of Attorney drawn up. We can do it for you, guiding you through the process and explaining it all in plain English. Lasting Power of Attorney can refer to your finances or to your welfare, and either type will give you peace of mind for the future. You’ll know that control of your assets and affairs will remain within a group of people of your choosing.

Find read more about the Court of Protection, go to www.thisismoney.co.uk/court

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We regularly advise couples on tax and protection issues. Quite often, during a routine consultation, we inform them that their joint accounts will be frozen should one of them lose their mental capacity in the future. More often than not, the couple simply can’t believe that this is true. Unfortunately, it is! That’s why we strongly advise couples to pay close attention to their financial arrangements, particularly if they give up their individual bank accounts and rely on one joint account. 

As this advice from the British Bankers’ Association states http://www.bba.org.uk/content/1/c6/01/45/51/jointacc.pdf, things can get tricky if one joint-account holder becomes mentally incapacitated. For those of you in England, your bank or building society would have to obtain an order from the Court of Protection (which protects the rights of mentally incapacitated people) before they can let you use the account. This can take time and cause extra heartache at a difficult time for the family.

We’ve blogged in the past about the importance of setting up a Lasting Power of Attorney. We’ll mention it again here, because it could have a real impact on access to your joint funds should one of you lose mental capacity. If the other joint-account holder had appointed you as attorney you will be able to register the power of attorney and run the joint account. However, if they appointed someone else, that person would have to agree with you (and the bank or building society) on the matter of how to run the joint account. In addition to this, the bank or building society may need a new mandate from you both.

Unfortunately for all those couples who think we’re joking when we say that joint accounts will be frozen if they lose their mental capacity – we’re not. Please take steps to protect yourself, and your hard-earned savings, against this outcome. We can advise you on how to set up protection quickly and easily.

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More and more people in Kent and the surrounding area are realising how important it is to make a Will, but only 100,000 people in the UK have so far made a Lasting Power of Attorney (LPA). A Will protects your wishes and looks after your loved ones when you die. But what happens to your wishes, your property and your loved ones if you lose mental capacity due to illness or accident?

Lasting Power of Attorney is currently the only way to protect yourself and others in this situation, and is a document which Government’s Ministry of Justice highly recommends we all have. We agree! With life expectancy in the UK on the rise, an LPA is a guaranteed way to protect your wishes and rights during your lifetime.

Let’s look at what can happen should you lose your mental capacity (the ability to make decisions and look after your own affairs):

- the Court of Protection can make decisions for you regarding your personal welfare, your property and your healthcare

- your loved ones and carers can be overruled and pushed out, even if they know what your wishes are

- paperwork and red-tape can cause delays, heartache and hassle

- your condition can worsen and your carers will feel the burden whilst the Court of Protection makes decisions for you in its own time

The Court of Protection has received 1500 complaints in the two years since it was set up, yet it is the Court of Protection which will make important decisions for you should you suffer head injury or dementia.

Lasting Power of Attorney is a relatively cheap and very easy way to bypass the Court of Protection altogether. Make one whilst you are fit and able: it gives you (and those around you) true peace of mind. An LPA allows you to choose someone you trust to make decisions for you in the future, should the need arise.  Protect the future of your loved ones and prevent yourself from being left open to manipulation.

Estate Legacy Services offer a LPA at a fixed cost, and they will visit you in your own home in Kent and the surrounding areas.

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Figures published at the end of 2009 suggested that the amount of people aged over 100 will almost double in the UK this decade. Have you and your loved ones made adequate plans for long-term care?

 The Department of Work and Pensions predicts that the number of people 100 years of age and over will reach in the region of 12,000 in 2010, and this figure will rise to about 22,000 by 2020. By 2050, they say, the amount of Kent residents over 100 years of age could be as high as 280,000. Meanwhile, Office for National Statistics figures state that the number of UK pensioners could reach 16 million by 2050 (from 12 million).

 It’s clear from those figures that long-term care for the elderly is a hugely important issue. Whatever your current age, have you planned for your own care in your old age? Have you addressed the challenge of caring for your own parents or other elderly relatives? None of us are getting any younger!

 Planning long-term care needn’t be a headache. The experts at Estate Legacy Services are skilled in helping Kent residents and their families work out how to tackle the requirements of old age. Along with our Will writing services, we can also help you resolve Inheritance Tax issues, protect your family home from long-term care fees and provide for the future of elderly family members. 

 We recognise that planning long-term care for the elderly, ill or disabled can be a difficult topic and we will visit your home at a convenient time in order to discuss your requirements in confidence and with sensitivity. We will help you assess your requirements and options, giving you our best advice and guidance before providing you with water-tight legal documents.

 We can help you plan for long-term care, put lasting powers of attorney in place, set up pre-paid funeral plans and provide a professional executor and trustee service if needed. We realise that there’s never a good time to tackle such difficult issues, but we also know that there’s no time like the present. Let us help you ease the burden by getting everything put in place.  Estate Legacy Services visit you at home and offer probate for a fixed cost, so that’s one less thing to worry about this year…..

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