What would happen to you and your family if you lost the ability to manage your own affairs? Think dementia, stroke, accident etc. It’s a sad fact that more and more of us are affected by these things, especially as we get older. This can mean that we are no longer capable of managing our day-to-day lives like we used to. It can also mean tremendous stress and upset for your loved ones, who find they can’t help as much as they would like to. Why?
You may assume your spouse or partner or your immediate family will automatically be able to deal with your financial affairs, bank accounts, pay bills and so on. You may assume they will be able to make decisions about your health and care if you can’t. Unfortunately, these assumptions are wrong!
If you don’t have a Power of Attorney in place it may be necessary for the Court of Protection to be involved. An application may have to be made to the Court to appoint a Deputy to manage your affairs. This takes a long time and can cost thousands of pounds, meaning expense, delay and anxiety for you and your loved ones at what is already a very worrying time. Just imagine that urgent decisions need to be made about healthcare of a close relative who can’t speak for themselves, but lack of a Lasting Power of Attorney prevents those decisions being made. Applying to the Court of Protection for authority to act (even if that option is affordable) is likely to take months. What can be done to prevent this kind of situation arising? There is a solution, but it involves serious thought and planning, then preparing and signing one or more Lasting Powers of Attorney. Yes, that’s right – it’s not enough to agree that it’s a good idea, you have to get on and do it!
Making Lasting Powers of Attorney can help take away a lot of the stress and worry by appointing people you trust to make decisions on your behalf. There are two types of Lasting Power of Attorney, the Health and Welfare LPA, and the Property and Financial Affairs LPA. You can make one or the other, or (as many people do) you can have both types. As the two documents provide for different circumstances, it can be a sensible move to have both. That way, you might consider you’ve covered all your bases as far as possible.
The health and welfare LPA relates to decisions about your wellbeing. The examples given on the UK government website include decisions relating to your personal care, medical treatment, moving into a care home, and life-sustaining treatment. For more details, see Make, register or end a lasting power of attorney – GOV.UK (www.gov.uk). This health and welfare LPA can only be used by your attorney(s) when you’re no longer capable of making your own decisions. This is serious stuff, as it can include giving your attorneys authority to make life-changing decisions on your behalf. That’s not compulsory, by the way, but many people think it’s a good idea to include such powers, because your wishes are then absolutely clear. For example, if you’re in a coma and unlikely to recover, how would you wish to be treated? These are things to be considered when making a Lasting Power of Attorney.
The property and financial affairs LPA deals with money and assets. Examples given are that your attorney(s) can deal with your bank accounts, pay your bills, collect your benefits and pensions, and if necessary sell your assets, including your home. Unlike the health and welfare LPA, the property and financial affairs LPA can be used by your attorneys as soon as it’s registered (with your agreement of course). In other words, you can still have mental capacity but your attorneys can act on your instructions.
With both types of LPA, they must be registered before they can be used. They are registered with the Office of the Public Guardian. The registration process is not quick and can take several months, so it may be wise to prepare well in advance if you think an LPA might be necessary. The OPG charges a fee of £82 at the time of writing as a registration fee for each document, so £164 to register both types at the same time. Whilst this cost and any professional fees you incur in preparing your documents might be unwelcome, it can be false economy to delay because of the cost. It will cost many times more if you don’t have LPAs registered and have to apply to the Court of Protection for authority to act (a deputyship).
The Court fees for an application to become a Deputy are higher, too. Current fees are £371 per application. Don’t forget there are two types of deputyship, just as there are two types of LPA (so potential fees of £742). Applying for deputyship is not a quick process and in some cases can involve a further court fee of £494 if a hearing is necessary. It’s an expensive exercise and please take note that the fees we mention here are court fees and do not include any professional charges you might incur if you need legal advice and guidance.
We’re not trying to alarm you here, but rather to drive home the message that deputyship is best avoided if possible because of the costs and constraints it involves. Making Lasting Powers of Attorney is far cheaper, so if you think there’s a chance of an LPA being required in your family, you’d do well to get on with it. There is a fee remission scheme if you’re on a low income. See the links below for more information.
So, we’ve learned a little about what your attorneys can do if you sign an LPA in their favour. Now let’s explore the subject of who should be your attorney, or attorneys. When dealing with such important matters it goes without saying that you must absolutely trust the people you appoint. You’re giving them control over your welfare after all. Should you appoint one attorney, or more than one? The answer is usually more than one. If you have only one attorney, consider what happens if that person dies, or otherwise becomes incapable of acting. You’d then have to make another LPA. Inconvenient, true, but what if in the meantime you had lost mental capacity and were incapable of making another LPA? You’d be left without an attorney to manage your affairs. So, you should always appoint more than one person. Technically there’s no limit on the number of people you can appoint, but let’s not get carried away. Four is probably the maximum number you should appoint for logistical reasons, as things can get complicated and there can be confusion as to who should be doing what.
It’s common for couples to appoint each other together with one or more of their children (over 18 of course). You can appoint friends, relatives, pretty much anyone you want really. They must be over 18 and able to understand the responsibility they are taking on. For a property and financial affairs LPA, you can’t appoint someone who’s bankrupt. Take great care when choosing your attorneys. You will be relying on them to act in your best interests, so it’s essential you choose the right people.
For some more information and further reading, have a look at the UK government website Make, register or end a lasting power of attorney – GOV.UK (www.gov.uk) which gives a more detailed account of what’s involved. You can also refer to the Office of the Public Guardian – see Creating an LPA – Frequently asked questions – Office of the Public Guardian (blog.gov.uk). The law on this subject is not straightforward and there are traps for the unwary, so do take professional advice if you need it. Remember it’s going to be worth paying professional fees if you’re not confident of completing the forms yourself. We can prepare LPAs for you at a reasonable cost, and guide you through the process, giving you as much or as little help as you feel you need. If all you want at this stage is to talk through your options, we’re happy to oblige. Just use our contact form to get in touch!
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