No one wants to have to consider a time when they lose the ability to manage their affairs, but it is always better to be prepared for the future and make your wishes clear, should the worse happen. Many people are planning for the future by allocating a loved one or trusted friend as their representative with a Lasting Power of Attorney.
What is a Lasting Power of Attorney?
If you lose your faculties due to the likes of dementia, a stroke, or a serious accident that leaves you unresponsive, someone will need to take responsibility for your finances and welfare. A Lasting Power of Attorney (LPA) is a legal document where an individual with full mental capacity, nominates a trusted friend or family member to take their decisions should they become incapable.
Types of Lasting Power of Attorney
While we recommend setting up both types of LPA, there’s the flexibility of setting up just one or both, depending on your circumstances:
- Property and Financial LPA – Allows your representative to manage all your financial affairs, including the likes of managing your bank accounts, property, investments, and taxes. Appointing a Property and Finance Lasting Power of Attorney doesn’t mean you instantly give up control of your finances and affairs. You have the power to choose whether it is implemented before, or after you have lost mental capacity.
- Health and Welfare LPA – Allows your representative to make decisions about your health and care, including whether you are admitted to a care home or what treatment you receive. The representative you appoint in your Lasting Power of Attorney can only make decisions for you if you are unable to do so when they need to be made. For instance, should you become incapacitated by a stroke or illness, your representative would take over looking after your affairs. Once you recover, you will be able to resume the responsibility for your finances once again.
To grant your representative the authority to take control of your affairs, you need to submit the relevant forms to the Office of the Public Guardian. Form LP1F is for an LPA for property and financial affairs and form LP1H is for an LPA for health and care. An LP3 form may also need to be completed if there is anyone else you would like to be informed.
You can fill in the Lasting Power of Attorney documents for yourself, via online application forms. However, as the LPA is a rather significant legal document, you may want to enlist the help of an expert. An expert would also be beneficial, if there are complex assets to manage, like overseas property, or if there are rifts within the family.
The forms must be signed by the chosen representatives and the person making the LPA before they can be registered. Plus, a ‘certificate provider’ must also sign the LPA document to ensure that the creator knows what the Lasting Power of Attorney means. A ‘certificate provider’ can’t be a family member. It must be someone the individual making the LPA has known for at least two years, or it can be someone with professional knowledge in their situation, such as a solicitor, social worker or doctor.
After the LPA documents have been filled in and signed, they are ready to be registered at the Office of the Public Guardian, which costs £82 per LPA. Registration usually takes 8 to 10 weeks. Any objectors have four weeks to challenge the LPA if they believe it was made under duress, or by someone who lacked capacity. If no objections are filed, the LPA is active once the registration process is complete.
Registering early is important as it gives you time to correct any errors, which may delay the process. Time may be a critical factor at a later date if registration is delayed until the LPA is actually needed. Also, errors cannot be corrected if the donor has subsequently lost capacity. If the forms are completed, but not registered the LPA does not stand.
As 1 in 7 of all LPA applications are considered imperfect for registration, it’s important to make sure that every part of this document is completed correctly. If you’re confident enough to complete the document yourself, we are willing to carry out a document check for a small fee, to ensure that it is free of mistakes.
A Lasting Power of Attorney can only be put in place when your mental capacity is still in place. Once capacity is completely lost, it is a far lengthier and much more costly process to gain control over the financial and health decisions of someone without the faculty to make their own decisions.
In the absence of an LPA your trusted friend or relative will need to apply to the Court of Protection to be appointed as a deputy for property and financial affairs and/or a deputy for personal welfare. During the process, the Court needs to determine if the individual has indeed lost the capacity to make an informed decision and if the person(s) is an appropriate deputy.
The costs of this process can soon add up. To register as a deputy costs £400, and if you choose to use a solicitor, add at least £1,000 to the bill. If a hearing is needed, that could cost another £500. Then there are the supervision fees for deputies, with an initial payment of £100 and a yearly charge of £320, depending on the level of supervision needed. Compared to the average price of creating an LPA – even with the help of an expert, you could potentially save £1000’s by acting now. A typical cost of being appointed as a deputy is £3500 and it usually takes around 6 months.
Although it is uncomfortable to think about a time where you will lose your mental capacity to care for yourself or your affairs, it is so important to act early. The thought of an LPA may not be a priority but due to the UK population ageing, it’s more important than ever to plan for the future to give you comfort in knowing that you’re protected from the unexpected.