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Lasting power of attorney: how you can safeguard your future

Drawing up a lasting power of attorney (LPA) now could help to prevent unnecessary problems in the future.

 

by Michelle McGagh on Apr 10, 2012 at 09:42

Lasting power of attorney: how you can safeguard your future

A report by the Alzheimer’s Society has revealed that three-quarters of Britons feel society is not geared up to deal with dementia. But you can take action now to protect yourself or a loved one by drawing up a ‘lasting power of attorney’.

Dementia is a serious problem in the UK. There are currently 800,000 suffers in the UK, and the government has recently announced a doubling of funds for dementia research. It has also called for a change in the way the country talks, thinks and acts when it comes to dementia.

Too often families have no strategy in place for dealing with a relative who has dementia, but there is something you can do before there is even a problem, as long as you are willing to tackle this sensitive subject.

What is a lasting power of attorney?

A lasting power of attorney (LPA) is a legal document that can be created by one person, in a similar way to a will. Whereas a will sets out what you want to happen to your possessions and who will look after your children when you die, an LPA deals with what happens to you in the event that you become unable to look after yourself.

It allows you to name one person who will have control over decisions about your money, property, healthcare and general welfare, should you be unable to make these decisions.

An LPA comes into force if you are ‘lacking mental capacity’. You could lose your mental capacity through an injury or illness that makes it difficult for you to make decisions, or means you take a long time to make a decision, such as dementia.

Is it the same as an enduring power of attorney?

LPAs replaced enduring power of attorney contracts in 2007, although if you or a loved one already has an enduring power of attorney there is no need to change it to an LPA – enduring powers of attorney are still valid as long as they were written and signed before 1 October 2007.

The most significant difference between an LPA and an enduring power of attorney is that the former has to be registered with the Office of the Public Guardian and can only be used once it is registered there. An enduring power of attorney does not have to be registered, it is just used when needed.

How do I do it?

1. Pick someone who you trust, or people who you trust, who you know would have your best interests at heart should you become incapacitated. This person, or people, become you attorney/s.

2. Decide which LPA you want. There are two types:

  • The property and affairs LPA. This allows you to give someone the power to deal with your financial affairs, such as paying bills and making decisions about your property, including whether to sell it.
  • The personal welfare LPA. This allows you to give someone the power to deal with decisions that affect you, such as the type of medical treatment or other types of help you may need.

The personal welfare LPA and property and affairs LPA are separate documents, and you can chose just one if you want to. However, the decisions about your personal welfare and your finances often go hand-in-hand.

There are separate documents that need to be filled out for both.

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11 comments so far. Why not have your say?

Anonymous 1 needed this 'off the record'

Apr 10, 2012 at 19:34

And then the fun begins.

Every single organisation treats POA differently and still require proof of identity of the person who has granted the POA. Half the time the organisations don't know what a POA is and they give you different information as to what you are entitled to do. Some banks are very good. Most are "frustrating" to say the least.

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Warren

Apr 10, 2012 at 19:49

My experience with a Property and Personal Affairs LPA is that the system is a minefield of conflicting standards, depending on which office or agency you are dealing with. Some will accept photocopies of the LPA, others require that each page be certified as a true copy of the original, which is often kept by the solicitor who prepares it.

The whole LPA system could be greatly improved by reducing 26 pages of LPA which has to be certified and photocopied and replacing it with a single certificate.

The question of mental capacity is another minefield, not enlightened by the 300+ official guide. It is important to note a donor who still has mental capacity can ask the attorneys to act under the LPA.

The present system is a unecessarily expensive procedure, which can also create a very substantial burden on the attorney - in my case, it almost became a full-time job for over a year. Potential attorneys need to be aware of this before they sign up. As for the advice given by the Office of the Public Guardian, it was often contradictory and unclear.

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Geoff Harrop

Apr 11, 2012 at 10:06

No doubt it is in the financial interests of some to make this subject as complicated as possible. How about a video recorded [in a solicitor's office if possible] of how the person wants his affairs to be handled ?

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JohnB

Apr 11, 2012 at 13:19

An EPA only covers financial issues. When my mother-in-law was in the final month or two of her life the local healthcare tsars wanted to move her from the care home she'd been in for several years to a nursing home of their choice. The daughters had an EPA registered with the Court of Protection, but this was deemed only to cover financial matters, not welfare ones. There was a protracted argument until death intervened.

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Dislexic Landlord

Apr 15, 2012 at 08:59

Is something better than nothing ???

Im arrangeing mine at present

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The Wills Man

Apr 15, 2012 at 19:20

Firstly, 9 weeks to register an LPA would be a dream - currently we are waiting up to 16 weeks.

Second: yes they are complicated - but then so is mental capacity and there was an urgent need to change the old EPA as there was a great deal of scope for fraud - such is the way modern society has developed (note that I deliberately avoided any mention of "civilisation"!)

Third: always, always, ALWAYS have more than one attorney - even if there is only one appointed you should have at least one reserve. LPA is such an expensive and time consuming process it would be a disaster if your only choice of attorney was unable to act, and having more than one reduces the risk of fraud. (What a cynic I am!)

Fourth, and most important, attorneys need to be able to act jointly and severally - I had a client recently whose mother had lost capacity but had appointed all three of her children as attorneys. One had tragically died and the solicitor, (bless him), had advised her to appoint them "Jointly" and therefore the LPA was declared invalid - cue large legal fees and the Court of Protection/OPG and the solicitor "get-out-of-jail-free" plea: "We only followed our client's instructions"

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elizabeth wildgoose

Apr 15, 2012 at 23:41

ok, im pretty much convinced that this is a "good thing to do" in theory. Does anyone have any idea what it might cost ?

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The Wills Man

Apr 16, 2012 at 10:24

@ elizabeth wildgoose: LPA is indeed "a good thing to do" and in theory you can do it yourself by downloading the relevant forms from the net.

My experience is that nearly everyone finds these daunting to complete and prefer to use a professional service: - this is where care is needed.

I have seen cases where "professionals", including solicitors, have charged anything up to £350 for just sending you a printed form in the post with instructions on how to choose a certificate provider. This means that they are not acting as a certificate provider and therefore not accepting the responsibility that goes with that and subsequently you have no recourse if registration fails.

A professional certificate provider MUST be qualified, (ask for proof), and MUST have PII - again, ask for proof.

Prices can range from about £300 (typical of IPW members I believe) to over £1,000 per LPA. Always check if the fees include completing the registration forms, (just as daunting - even for us professionals), and whether the OPG fee (£130 per LPA) is included. Registration is not needed until mental capacity has, or is being lost but because of the time factor, (up to 16 weeks) many choose to register immediately to prevent delay later.

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ljmuk

Jul 07, 2012 at 12:03

I am a POA for my elderly mum. {I am also a pensioner), I downloaded the forms from the internet and filled them in with my mum. It was easy and you do not need a solicitor. You just need to read the guide notes very carefully as you fill in each part of the form. After you have finished you need to go through the checklist a couple of times to make sure you have completed them correctly. Mum appointed a replacement attorney in case I fall off my perch or lose capacity before she does. I am seriously thinking of making a POA for myself with my sons as attorneys. It will certainly give me peace of mind. I don't want some stranger deciding what happens to me or my assetts if I get demetia. I also don't want some solicitor taking a bite out of my savings to do something that I am perfectly capable of doing myself.

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ljmuk

Jul 07, 2012 at 12:10

Note to Elizabeth Wildgoose - Do it yourself! The Wills Man is a professional and it is in his interests to convince you that it is complicated and difficult and that you should employ someone to do it. If little me can do it - anyone can do it. (I am a female pensioner, very ordinary, not highly educated).

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Stephen Pett Legal Planner

Oct 05, 2013 at 16:35

The article misses the point.

Everyone over 18 needs both types of Lasting Power of Attorney, regularly reviewed.

A miss-step, stroke, car accident or any of a million things could mean your life is totally out of control in seconds.

Leave it too late and Social Services end up in charge.

Leave it until you are older and dafter and the crooks could have a field day!

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