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Lasting Powers of Attorney – What Are They and Why Are They in the News

A Lasting Power of Attorney is a legal document which allows the person you choose to take over decision making on your behalf when you are mentally unable to do so yourself. The person you elect in your LPA is called your Attorney.

There are two types of LPA:

  • A Property and Affairs LPA- This allows your Attorney to either assist you in making financial decisions or take over dealing with your finances on a day to day basis. They can also sell your property on your behalf, if this is required.
  • A Health and Welfare LPA- This allows your Attorney to make health and welfare decisions on your behalf (such as what medical treatment you receive, your daily routine etc.) when you are mentally unable to do so yourself.

 

LPAs replaced the more inflexible Enduring Power of Attorney (EPAs) in October 2007.

 

Why are Lasting Powers of Attorney in the News?

On 15th August 2017, a retired senior judge, Denzil Lush, appeared on the Radio 4 “Today” programme alerting listeners to what he perceived to be the risks of having a Property and Affairs LPA and vowing never to sign one himself.

He discussed the tragic case of Frank Willett who in 2003 was suffering from dementia and made his neighbour, Colin Blake, his attorney through an EPA. This gave Colin control over Frank’s finances and he started emptying Frank’s account.

In early 2008 Mr Willet’s daughter, Lesley, managed to revoke the power of attorney to find all her father’s money gone along with his army medals, her mother’s wedding ring and other valuables. Ultimately, Colin pleaded guilty to theft and was sentenced to four and a half years.

However, a Lasting Power of Attorney, which replaced the EPA, ensures that this type of terrible situation is highly unlikely to happen again because:

  1. You must have full mental capacity to make a Lasting Power of Attorney. Frank was suffering from dementia when he was persuaded by Colin to make him his attorney. An LPA requires that the person making it is certified to have the mental capacity to do so, and that they are doing so without being subjected to any pressure or fraud.
  2. Your Lasting Power of Attorney can contain the names of anyone you, as the donor, want to be notified of any application to register the LPA. Previously, there was no option to notify anyone when making an EPA.
  3. You can make any limitations you like in your LPA as to what your Attorney can and cannot do.
  4. Your Attorney cannot act under an LPA unless it is registered with the Office of the Public Guardian who will notify you, your attorneys and those you have requested to be notified. An EPA was only registered at the point you lost mental capacity. Registration of LPAs before they can be used means the Office of the Public Guardian have a record of all registered LPAs
  5. The Office of the Public Guardian has the power to investigate your Lasting Power of Attorney and swiftly remove them if they have found to be in breach of the Code of Conduct.

There are still one or two cases under the LPA where a child has misused their parent’s money. However, if you are properly advised by a solicitor who constructs your LPA for you, then you can remove this risk by appointing multiple attorneys who need to jointly agree any decisions on finance or property.

 

The Benefits of Having a Lasting Power of Attorney

The benefits far outweigh any potential problems which can be minimised, and are often reduced to zero by a well-constructed LPA.

It is especially important to have a Property and Affairs LPA if you are the main provider for your family or a single parent. If you become unable to make decisions for yourself, e.g. you have a stroke, suffer from dementia or become incapacitated in a serious accident, then your partner or family would be unable to:

  • Access any accounts in your sole name (e.g. bank account, ISA, pensions etc.).
  • Speak with businesses (such as your mortgage provider or gas and electricity company) about re-arranging payments

They can only obtain this authority by applying to the Court of Protection who will appoint a Deputy to manage your finances. However, this application costs around £1,500 and takes on average 4 months- it can take as long as 6 months. By the time a Deputy has been appointed, your family may be in serious financial trouble on top of being worried about you. Also, the Court may appoint someone who you do not want to act on your behalf.

Takeaway Points

This interview highlights the need to take professional advice and have a properly drawn-up LPA in place. All the potential drawbacks mentioned by the judge can be overcome by a well-constructed LPA which limits what your Attorney can and cannot do and/or by appointing multiple financial Attorneys who must make joint decisions on your behalf.

Else can advise you on the best option for your situation. An LPA gives you peace of mind and is very much preferable to the additional cost and time spent by your family in making an application to the Court of Protection.

 

Why Choose Else?

Else has a great deal of experience in sensitively gathering the needed information and putting both Property and Affairs and Health and Welfare LPAs in place. We understand that this is a difficult process for both you and your family and we will make you feel as comfortable as possible.

You will discover that we have an enviable reputation for always going the extra mile and offering a personal, jargon free service. You can rest easy that you are in trusted hands. You will feel secure in the knowledge that our understanding and experience will ensure that you are protected and your wishes are respected.

If you would like the peace of mind that comes with having an LPA in place, then please contact our Head of Wills and Probate, Kathryn Caple, on 01283 526230 or at kathryn.caple@elselaw.co.uk. Kathryn is an experienced solicitor who is very sensitive to the needs of her clients.

We invite you to experience the Else difference today.

“From the initial consultation, through to selling my property, the Property team at Else Solicitors have been professional, proactive and most importantly have kept me updated at all times. Their attention to detail ensured that every aspect of the sale was meticulously handled, alleviating any concerns along the way. Else’s ability to explain complex legal concepts in a clear and concise manner was greatly appreciated and helped me feel confident in any decision making. I cannot thank the team enough for their hard work, professionalism, and dedication throughout this process. I would recommend Else Solicitors to anyone.”

Callum Campbell, MD Brilliant Hygiene Services Ltd

“Kathryn, it has been a pleasure working with you and we will certainly recommend you to friends and family. Many thanks for your wonderful support to myself, my husband and mother-in-law for all the work conducted on our LPA's for property and financial affairs and health and welfare.”

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“I was advised at a preliminary court hearing that I should engage with a solicitor for legal assistance on my court case. I researched Else solicitors and had an initial call to discuss my case, which I was impressed with. I engaged with their services and worked with Chris throughout the matter. He was impeccable with his communication and quick to respond. As a result of his hard word, Chris successfully resolved the matter through negotiation saving future legal fees and avoiding the need to attend the final court hearing. I would highly recommend Else’s services for future business legal requirements.”

Dispute Resolution Client

``I wish to express my sincere appreciation for the excellent service provided to me by Kathryn Caple and an Else Solicitors team. I could not have completed my father’s estate and his Will processing without their
kind help while I am leaving in USA.

Kathryn is one of the shining examples of professionalism, caring and knowledgeable person. She listened, advised and kept me informed throughout the process dealing with my father’s estate. I am very pleased with the quality, responsiveness and extensive legal expertise of Kathryn.

A massive thanks to Kathryn and Else Solicitors Team! I would highly recommend their service.

On my personal note, I really enjoyed working with Kathryn. I could not be more satisfied.”

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Wills & Probate Client

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Wills & Probate Client

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Mr Terry Wills & Probate Client

``I used Else Solicitors recently to do my probate work, having had excellent service previously on some house sale matters. Kathryn Caple, their head of probate was exceptionally efficient and knowledgeable. I had total confidence in the expertise I was being provided and the work was completed in a very timely manner. Feedback was continuous and I was totally satisfied by the outcome``

Russell Jeans Probate Client

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I looked on the Internet and filled in Else Solicitors web enquiry form, A member of the team called me back and talked through the various options, which I took away to discuss internally with my business partner. We agreed the plan of action which Else's team executed swiftly and efficiently, dealing with all correspondence received from the Main Contractors Solicitors, our monies were received in our bank within 2 weeks.

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Construction Client Construction - Retention Monies

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Liz Strama CEO - HR Protected

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From our point of view, it was money very well spent as within 2 weeks full payment was made by the contractor who previously had a very stern view of not paying.
Laura and her team battled many emails with the contractors solicitors, all of which was included in the price.
A massive thank you once again! Would highly recommend!``

Debt Recovery Client

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Chris and his team,have been professional and supportive throughout and where needed have been prompt in their responses, often at late notice.
I was really pleased with their approach to helping myself and my Business Partner Paulene navigate the pages and pages of contracts and break them down into plain English where needed!
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Amanda Jarvis-Doyle Ethical Property Partners (Property Consultant)

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Proceedings were issued and the case proceeded to a final hearing. We cannot thank the team enough for the work put into this case as the final judgment was in our favour and we recovered the debt in full, plus a portion of our legal costs.

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We would not hesitate to use their services again.``

Ian Hardie Sales Director at Smart Directions Limited.

``Laura and the team have become an excellent asset to our finance department over the last year. They have helped us recover debts in full from 2 particularly difficult payers that we had no hope of recovering ourselves! They make the process simple and easy to follow, and always have a quick, helpful reply when we need something clarified. I would recommend Else Law to anyone who needs additional help with pursuing uncooperative customers because so far they have a 100% success rate with us!``

Debt Recovery Client

``A huge thank you to Laura and Elselaw for assisting in recovering monies owed on a 12-month-old invoice. Even though our business is based in Australia, we were impressed how quickly they assisted with our enquiry and put us at ease given the international element to the litigation.

We would highly recommend any business based outside of the UK, who has a troublesome UK client, to consider using Else Solicitors (Laura!) to resolve their issue quickly and efficiently.”

John Morgan, Director of Forensic Instinct

“The Else Debt Recovery team have done an excellent job in keeping us organised and on track over the past 18 months and the Commercial Dispute Resolution teams input has been a great help in recent months, dealing with the more problematic situations, including collection of the largest debt by speaking directly with the MD and owner of the debtor company, taking the heat out of that situation”

Debt Recovery Client

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Having a well-known reputable company in Else at the end of a phone is reassuring. We have found that since we have been using Else to recover debts, we have saved time, money and most importantly their expertise means that the debt is almost always recovered.

Else offer an outstanding service which we have used for over 5 years. We would thoroughly recommend their service without hesitation.``

Lisa Griffin Debt Recovery Client
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