LASTING POWERS OF ATTORNEY

TYPES OF LASTING POWER OF ATTORNEY

There are two types of Lasting Power of Attorney (LPA).  One covers your Financial affairs and the other covers your Health and care.

A financial LPA enables your attorneys to make decisions about your finances, including paying your bills, selling your property, managing your investments and operating your bank accounts.

A health LPA enables your attorneys to make decisions about your health and welfare, so matters such as your medical treatment, diet, where you live, how you spend your time, the people who visit you and even life sustaining treatment should the need arise and you wish them to do so.

A key distinction between the two types of LPA is that the financial LPA can be used both before and after you lose capacity, whereas the health LPA can only be used after you have lost capacity.  Only you will be able to make decisions about your health and welfare whilst you retain sufficient capacity to be able to do so.

To arrange a no obligation and free initial discussion please call either our Reading Office on 0118 957 4424 or our Bracknell Office on 01344 53 4424.  Alternatively email sols@ejwinter.co.uk or click contact us now.

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WHO CAN ACT AS ATTORNEY

It goes without saying that you should only appoint people who you trust implicitly as your attorneys.  You can appoint family members, friends or professional advisors such as solicitors or accountants.

If you make both a financial LPA and a health LPA, your attorneys do not have to be the same people.  Often it is advisable to consider your attorneys skill sets when deciding how they should act.  Some people may be better at handling your financial affairs, whilst others will be better at making decisions about your health and welfare.

You can appoint your attorneys jointly, jointly and severally or jointly for some decisions and jointly and severally for others.

  • A joint appointment offers the most security, however all decisions must be made by all attorneys and if any become unable to act, this is the end of the LPA.
  • A joint and several appointment allows your attorneys to make decisions both together and individually. This offers the most flexibility and also means that if one of your attorneys becomes unable to act, the remaining attorneys can continue to act.
  • The final option, joint for some decisions and joint and several for others, is not as common, but is generally used where clients want for example joint decisions to be made when it comes to selling property, but are happy for individual decisions to be made with regards to paying bills and similar.

You can appoint replacement attorneys, who will act only if your original attorneys become unable to do so.  This is often advisable given that you cannot amend an LPA once prepared and registered.  Should you wish to amend the LPA in the future, you have to draw up new LPA at that time, which will not be possible if you have lost capacity.

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CAPACITY

It is only possible to make an LPA whilst you have mental capacity.  Unfortunately many people leave it too late, at which point the only option available to their family is a time consuming and costly application to the court for a deputy to be appointed.

Making an LPA whilst you are fit and well is the only way to ensure that you have a say in who will manage your affairs in the future.

An LPA ceases to have any effect when someone dies.  Attorneys can only make decisions for you using your LPA during your lifetime.  Once you pass away, the executors of your will take over.

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CERTIFICATE PROVIDER

When making an LPA, you need an independent certificate provider to sign the document, confirming that: you have understood the meaning of the LPA; are not under any pressure to make the LPA; that there is no fraud involved; and that there is no other reason for concern.

The certificate provider cannot be:

  • an attorney or replacement attorney named in this LPA or any other LPA or enduring power of attorney for the donor
  • a member of the donor’s family or of one of the attorneys’ families, including husbands, wives, civil partners, in-laws and step-relatives
  • an unmarried partner, boyfriend or girlfriend of either the donor or one of the attorneys (whether or not they live at the same address)
  • the donor’s or an attorney’s business partner
  • the donor’s or an attorney’s employee
  • an owner, manager, director or employee of a care home where the donor lives

We are generally happy to act as certificate provider unless you have chosen to appoint this firm as your attorneys, or there are capacity issues – whether these are clear from speaking with you, or if whether there is anything in your medical records which suggests it would be prudent for a medical professional to act in this role.

To arrange a no obligation and free initial discussion please call either our Reading Office on 0118 957 4424 or our Bracknell Office on 01344 53 4424.  Alternatively email sols@ejwinter.co.uk or click contact us now.

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PREFERENCES, INSTRUCTIONS AND POWERS

We recommend that you include a number of powers, instructions and preferences in your LPA to ensure that your attorneys are not limited in what they can do on your behalf.  If for example you have investments held in a managed portfolio, your attorneys will not be able to deal with these on your behalf without a suitable discretionary management power included in your LPA.

We generally include a number of instructions both for your protection and for the protection of your attorneys, since they may be supervised.  In the financial document, we generally include instructions making sure the attorneys are aware that they must take proper financial advice when making decisions about investments on your behalf, that they must ensure any investments made are suitably diversified, that you are involved wherever possible in any decisions they make on your behalf and that they try to manage your affairs as you used to do before you lost capacity.

In the health LPA, we generally include guidance, setting out your wishes with regards to living arrangements and end of life care, including the circumstances where you would not want to be given treatment which is aimed only at keeping your alive and your wishes with regards to pain control which may shorten your life.

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REGISTRATION

We recommend that all LPAs are registered with the Office of the Public Guardian as soon as they are signed, since the registration process can take a number of months.  Our fixed fee for preparing LPAs includes our fee for registering the documents.

If you lose capacity before the LPA is registered, it can take a significant amount of time before anyone will be able to assist you.  Furthermore, if during the registration process, the Office of the Public Guardian spot anything that they would like to be amended, it may not be possible for you to deal with this if you have already lost capacity – leaving a costly application to the court for a deputy to be appointed as the only option remaining for your family.

To arrange a no obligation and free initial discussion please call either our Reading Office on 0118 957 4424 or our Bracknell Office on 01344 53 4424.  Alternatively email sols@ejwinter.co.uk or click contact us now.

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To arrange an appointment to discuss Lasting Powers of Attorney or any issues raised here, click below.

WILLS, PROBATE & POWERS OF ATTORNEY TEAM