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What is a Lasting Power of Attorney?

Imagine, for a moment, you had an accident or contracted a very serious illness and were unable to think clearly or communicate properly.

A coma would be the most severe example but there are other situations where someone would not be able to communicate or think clearly such as someone who had a stroke or dementia.

Your partner needs money and you have a reassuringly large money balance in your current account and plenty in an ISA. However, the bank won’t let your partner access it as it is in your sole name.

You can also have a situation where benefits or money is regularly paid into your account and again your partner cannot access this or divert it to their account.

Your partner must now apply to the Court of Protection to gain the right to access your accounts. This takes minimally 6 weeks, on average 4 months and it can often take up to 6 months or longer. In the meantime, your partner is not only very worried about you but are concerned about money.

We hope this situation never happens to you or one of your loved ones. Unfortunately, for a few of you, it will.

You can put something in place to make it easier on your partner and loved ones in case such a thing happens. You can make it possible for them to access your accounts and make financial and health decisions on your behalf. This is done through a Lasting Power of Attorney.

You may have heard of a Lasting Power of Attorney (LPA) but might not be sure what one is.

A Lasting Power of Attorney is a legal document which allows a 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.

For example, if you had a stroke, suffered from dementia or had been incapacitated in a serious accident then the person named in your LPA would be able to make decisions and take action on your behalf.

You choose who you would want to act as your Attorney in such an event and name them in your LPA. They could be:

  • Your partner;
  • A family member;
  • A close friend;
  • A trusted advisor like your accountant or your solicitor.

Once you have had your LPA drawn up and signed and it has been registered with the Office of the Public Guardian, then your Attorney will be able to make decisions and take action on your behalf should you be mentally unable to do so yourself.

An LPA is an effective way to protect your family and loved ones from unnecessary stress and difficulties should you be unable to make decisions or take action due to illness, a worsening physical or mental condition or an accident. Let me explain.

Why is a Lasting Power of Attorney Important?

It is important as if you become unable to make financial or health decisions for yourself and you don’t have an LPA in place then your partner, family member etc. has to get the legal authority to make these decisions on your behalf.

They can apply for this authority from a Court of Protection but this takes months and costs around £2,500. The person chosen by the court is called your Deputy. This may not be the person you wanted to make decisions on your behalf.

Before the Court of Protection has appointed a Deputy, your partner or family members cannot:

  • Access any accounts in your sole name (e.g. bank account, ISA, pensions etc.). In the case of joint accounts, your partner can still access them as normal.
  • Speak with businesses (such as your mortgage provider or gas and electricity company) about re-arranging payments

These problems can cause debts to build up unnecessarily and add further to the stress and worry that your partner or family have to deal with.

They also cannot make decisions about your health and welfare such as:

  • The type of care you might need
  • Where you live
  • Whether you should receive life sustaining treatment

Who Needs a Lasting Power of Attorney

There is a case for anyone over 18 to have a Lasting Power of Attorney. You could be involved in an accident at any time. However, it becomes more important to have one, the more assets you have in your sole name and the older you get. An LPA is particularly important for the elderly.

A Lasting Power of Attorney is essential if you are the main provider for your family, especially if you have most or all of the accounts and assets in your sole name.

If you are a single parent, then we strongly advise that you put in place a Lasting Power of Attorney. If you do not, then those who look after your children, while you are unable to do so, will not be able to access your bank account. They also cannot receive any of the benefits or working tax credits that you may have been getting on your behalf.

Key facts:

  • An LPA can be made by anyone over the age of 18 who has the full mental capacity to understand its use and effect.
  • Whilst you have mental capacity, you can change your mind at any time. You can decide to change your appointed Attorney easily by revoking the document and creating a new one. This is important as things do change throughout life.
  • There are two different types of Lasting Power of Attorneys and these need to be completed and signed as separate documents.

Types of Lasting Power of Attorney

There are two type of lasting power of attorneys. You can choose different Attorneys for each one. For example, you could elect your accountant as your Attorney for your finances and your brother as your Attorney to make decisions about your health.

The two types of LPA are:

A Property and Financial Affairs LPA

This allows your Attorney to either assist you in making decisions regarding your property and finances or, when necessary, 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.

You may ask your Attorney to manage your financial affairs even if you are capable of doing so yourself. For example, if you are in hospital recovering from an accident or major operation, you may prefer someone to manage your finances while you are recuperating.

Your Property and Affairs Attorney must always act in your best interests.

A Health and Welfare LPA

Unlike a Property and Affairs LPA, a Health and Welfare LPA can only ever be used if you have lost the mental capacity to make such decisions yourself. All the time you have capacity, no one else can make these decisions for you.

A Health and Welfare LPA allows your chosen Attorney to make decisions about:

  • Your daily routine, such as what you wear, what you eat and who can visit you.
  • Where you live such as in your own home or in residential care
  • What medical treatment you receive such as life sustaining treatment or if you are to be resuscitated.

Your elected Attorney will understand your wishes and can take these important decisions on your behalf knowing what you wanted. If you don’t put an LPA in place, then it will be difficult to get a Deputyship Order for Health & Welfare decisions. The Court prefers to make Orders limited to specific decisions, rather than giving someone general authority to act on your behalf. The only way of making sure someone can do this for you is to appoint them as your Health & Welfare Attorney.

Your Health and Welfare Attorney must always act in your best interests.

It is important to have a Lasting Power of Attorney in place. We often see situations where not having one leads to very unexpected problems.

For example, Else were asked to help get a deputyship order for a pension fund. One of the trustees had suffered a series of strokes and had no LPA in place. Trustees have to act unanimously so they were unable to complete an essential property transaction until the deputyship order was in place and the Court of Protection authorised the change in Trustees.

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.

“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.”

Happy Wills & Probate Client

“My husband and I engaged Else and Co. in the sale of our home after a couple of earlier and very positive experiences with the company. The sale process was non standard owing to the nature of the deal, the long history of the property and the requirements of the buyers. The team handled everything in a confident, capable, timely and transparent manner right through to a successful closure. We appreciate expertise when we see it, particularly when it is local. We wouldn’t hesitate to reach out to Else and Co. again.”

Chris & Alison Stephenson

“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.”

Rakesh Mishra U.S.A.

``Thank you Kathryn for all that you have done to render an unpleasant process more palatable. I do appreciate the compassion you have shown throughout.”

Wills & Probate Client

``Thank you so much for all your help. You’ve really gone above and beyond and made this whole process much easier.”

Wills & Probate Client

``I would like to thank Kathryn for her support and guidance throughout this protracted procedure of settling the affairs of my relative. My family and I appreciated your endless patience”

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

``We are very pleased with the service Else Solicitors provided for us. We had retentions that were overdue (circa £40K), the Main Contractor had missed the payment date on their Payment Certificate, when chased we were told that they couldn’t pay for another couple of months due to cashflow, we had been in similar situations before, having been given payment plans that weren’t met, and then companies go into liquidation.

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.

Can’t recommend Else enough!``

Construction Client Construction - Retention Monies

``I would never hesitate in using their services again and in recommending them to other professionals.``

Angelica Duncan Director - Chameleon School of Construction

``Else have a great ability to handle complicated cases in a pragmatic manner, focusing on the commercial and practical impact for the client.``

Liz Strama CEO - HR Protected

``Smith Cooper work with a handpicked selection of law firms across the UK where our accountancy matters require expert legal advice. We refer specific corporate, litigation and insolvency cases to Else Solicitors because of their technical experience, flexible and professional approach and their efficient way of working. We have established close working relationships with the team at Else over a number of years.``

Dean Nelson Partner - Business Recovery & Insolvency - Smith Cooper

``I appreciate the attention I received and your professional service and whilst I don’t wish for a similar situation I would have no hesitation in using your services again.``

Debt Recovery Client

``Thank you Else Solicitors and in particular Laura Charles for another successful outcome this week in the recovery of our bad debt. We don’t get them often but it’s a huge relief and comfort to know we have your friendly but extremely professional firm always there ready to help with very little notice. It’s an absolute pleasure working with you and here’s to many more successful years. Thank you!``

Debt Recovery Client

``A massive thank you to Laura and the rest of the team at Else solicitors.
We had some issues retrieving monies owed from a previous contractor for the past 2 years, and the team really did go above and beyond.
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

``I would like to extend my thanks to Chris and the team at Else Solicitors for their support and guidance over my recent purchase of Ethical Property Partners England and Wales.
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!
I'm looking forward to them being able to help with the next step of sorting our Shareholder agreements!``

Amanda Jarvis-Doyle Ethical Property Partners (Property Consultant)

``We provide international shipping services to customers and following the non-payment of an invoice, we instructed Else Solicitors to seek recovery of this.

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.

The Team explained each step of the process to ensure our understanding of the case and provided updates at every opportunity. We were very pleased with the final result and the support received on the run up to the hearing.

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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Wills and Probate Client

``Forté Lubricants a division of Illinois Tool Works Ltd is a manufacturer and supplier of petrol and diesel-operated engine additives and has 40 years of experience helping and advising UK garages improve vehicle engine performance with our range of products.
Most of our debt recovery is done in house, however, we sometimes require Else to recover debts on outstanding invoices by one off buyers to the value of £500, resulting in Else recovering the money in full in less than 30 days.

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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