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:
- 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.
- 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.
- You can make any limitations you like in your LPA as to what your Attorney can and cannot do.
- 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
- 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.
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 firstname.lastname@example.org. Kathryn is an experienced solicitor who is very sensitive to the needs of her clients.
We invite you to experience the Else difference today.