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Welcome, to a journey into the heart of planning, protection, and peace of mind. Let’s take a moment to understand what an LPA really is. This is your map for your future, one that makes sure your wishes and well-being are looked after, even when you might not be able to voice them yourself.
An LPA is a legal document that allows you, the ‘donor’, to ‘donate’ your authority by appointing one or more 'attorneys' – trusted people of your choosing – to make decisions on your behalf. This could be about your finances, your health, or both, since there are separate documents for each property and financial matters and health and welfare matters.
What is a property and Financial Lasting Power of Attorney for?
Managing bank and building society accounts
paying bills and expenses
collecting income and benefits
selling or renting out property
investing money.
You can allow attorneys to act on your behalf before you have lost capacity by explicitly stating in your Property and Financial Lasting Power of Attorney (LPA) that you want it to come into effect as soon as it's registered, not only if you lose mental capacity. This provision can be incredibly useful in various situations, such as when you are physically unable to manage your affairs due to illness or injury but still have the mental capacity to make decisions.
Case study: John, a retired teacher who found himself in the hospital recovering from a major operation. Despite being mentally alert, his physical recovery period was expected to be lengthy, and managing his financial affairs, like paying bills, managing investments, and ensuring his business operations continued smoothly, was impossible from his hospital bed. Because John had previously arranged for his LPA to allow his attorneys to act even while he retained capacity, his appointed attorneys were able to handle his financial affairs seamlessly. This ensured that his bills were paid on time, his business commitments were met, and his financial life remained undisturbed, allowing John to focus fully on his recovery without the added stress of financial management.
What is a Health and Welfare Lasting Power of Attorney for?
Daily care decisions
Medical treatment
Living arrangements
Decisions about life-sustaining treatment
Case study: Brock, had a severe stroke that left him unable to communicate. Luckily, he had previously set up a Health and Welfare LPA, naming his daughter Emma as his attorney. This allowed Emma to make important healthcare decisions for him. She worked with his doctors to choose treatments that aligned with his wishes and found a care home close to her, so she could visit regularly. Emma's ability to make these decisions on Brock’s behalf, especially regarding life-sustaining treatment, was crucial during this difficult time. It ensured Brock’s preferences were adhered to, thanks to the foresight of setting up the LPA.
Why do I need a Lasting Power of Attorney
Life, as we all know, can be unpredictable. An LPA is there for those times when, due to illness, injury, or other unforeseen circumstances, you might not be able to make decisions for yourself. It’s about having the foresight to make sure that, if the unexpected happen, you’re prepared. And not just prepared – but prepared in a way that respects your values, your wishes, and your autonomy.
It focuses on the fact that no matter what life throws your way, your voice will still be heard, your wishes respected, and your well-being prioritised. An LPA isn’t about losing control; it’s about taking control of the unforeseeable, making sure that your future is in safe hands, come what may. It’s a huge gesture of trust, love, and foresight – and it’s something worth considering deeply.
What happens if I don’t have Lasting Power of Attorney for Property and Financial?
If you lose capacity and haven't arranged a Lasting Power of Attorney for Property and Financial Affairs, managing your bank accounts can become complicated. Here's what generally happens:
Bank Accounts Freeze: Without an LPA, banks and financial institutions may freeze your accounts once they're aware you've lost capacity even if it is a joint account. As wild as this sounds the reason for this is because the idea behind a joint bank account is that both account holders agree that they can both withdraw from the account, within its limit. If one account holder loses their mental capacity, they are then unable to agree for both individuals to withdraw from the joint bank account.
Seeking Legal Authority: A family member or someone close to you would need to apply to The Court of Protection for the authority to access and manage your accounts for a deputyship order. The process can be time-consuming and heinously expensive compared to being proactive and arranging your LPA.
Limited Access to Funds: Until the legal process is complete and someone is appointed to manage your finances, there might be limited access to your funds. This can affect the payment of bills, care costs, and other expenses especially if the majority of the money is one person’s account.
Selling a jointly owned property: If one partner is unable to participate in the sale process because they're physically unable or lack the mental capacity to make informed decisions, the other partner cannot legally act on their behalf. This is because one cannot sign for both their own share of the property and that of their incapacitated partner. This situation underscores the vital importance of naming more than one attorney.
Appointment of a Deputy or Guardian: Once the court process is complete, the appointed deputy can access and manage your bank accounts. They are required to act in your best interest and may need to submit annual reports to the court about how they are managing your finances.
Having an LPA for Property and Financial Affairs in place before you lose capacity allows the person you trust (your attorney) to manage your bank accounts without the need for court intervention. It ensures that your financial affairs can be handled smoothly and according to your wishes, avoiding delays and additional stress for your loved ones.
To learn more about Lasting Power of Attorney vs Deputyship read more here: Lasting Power of Attorney Vs Deputyship
What Happens if I don’t have Lasting Power of Attorney for Health and Welfare?
Decisions by Medical Professionals: Without an LPA, if you're unable to make decisions about your health care, doctors and medical professionals will make those decisions for you. They'll try their best to consider what you would have wanted, but without your explicit guidance, they have to use their judgment, which might not always align with your preferences.
Family Members May Have Limited Say: Your loved ones might have opinions about your care, but without an LPA in place, their ability to influence decisions is limited. This can lead to stressful situations if there's disagreement among family members or between your family and healthcare providers about the best course of action.
Potential for Court Involvement: In some cases, if there's a significant dispute or a complex decision to be made about your welfare, the matter might end up being decided by a court. This can be time-consuming, stressful, and expensive for your family, and it means that important decisions about your life are made by someone who doesn't know you personally.
No Appointed Advocate: An LPA allows you to choose someone you trust to advocate for your wishes and needs. Without it, there's no one with the legal authority specifically appointed by you to ensure that your voice is heard and your preferences are respected.
Increased Emotional Strain on Loved Ones: Not having an LPA can put a significant emotional burden on your family members, who might be unsure about the choices you would have wanted them to make on your behalf. This uncertainty can be an additional stressor during what is already a difficult time.
In essence, not having a health and welfare LPA means you're leaving a lot up to chance. It can result in decisions being made without your input, potentially leading to outcomes that you wouldn't have chosen for yourself. Creating an LPA is a way to ensure that, even if you're unable to speak for yourself, your voice and wishes can still guide the decisions made about your life.
Who should I choose as my Attorneys for Lasting Power of Attorney?
If you imagine that your life is a finely directed piece of Musical Theatre. Your Attorneys are the ones who will step into your shoes if you're ever offstage and can't act on your own behalf. It's a role that demands trust, responsibility, and a good understanding of who you are and what matters to you. So, how do you pick the right stars for such important roles? Here are some key considerations to help you make the best choices.
Trustworthiness: The Leading Quality
At the heart of it, your attorneys should be people you trust implicitly you’d want to be absolutely sure they’ll honour your directions and act in your best interest, right? These people will be managing your finances, making health care decisions, or both, you need people who understand the weight of their roles and are committed to respecting your wishes.
Understanding and Compatibility
Think about how well each potential attorney understands you, your values, and your preferences. They should be people who get the "real you" and are willing to advocate for your wishes, even if it's challenging. Compatibility is key, as these are the people who will be making decisions that affect your life and well-being.
The Ability to Act
It’s not just about understanding and trustworthiness; your attorneys also need the ability to act on your behalf effectively. This includes being organised, able to handle finances prudently, make health care decisions calmly, and navigate any legal or bureaucratic hurdles. Think of it as casting someone who can not only deliver a powerful monologue but also dance, sing, and juggle if the script calls for it.
The Dynamics of the Cast
If you're considering appointing more than one attorney, think about how they’ll work together. Will they be able to collaborate harmoniously, or are you setting the stage for a dramatic showdown? It’s important to consider the dynamics between your chosen attorneys. A well-balanced cast can support each other, making decisions with a blend of perspectives that still align with your wishes.
Availability and Location
Your attorneys should be people who are generally available and willing to take on the responsibility. It’s also worth considering where they live. While modern technology makes it easier to manage affairs from afar, having an attorney who’s nearby can be beneficial, especially for matters requiring a physical presence.
The Understudies: Alternate Attorneys
Life is unpredictable, and so is theatre. Sometimes a lead actor can’t perform, and that’s when the understudies step into the limelight. Similarly, consider appointing alternate attorneys who can take over if your primary choices are unable to act. It’s a clever way to ensure that the show goes on, no matter what.
How do Attorneys make decisions for a Lasting Power of Attorney?
Alright, let’s talk about setting the stage for your LPA with a bit of strategy on how your chosen stars, aka your attorneys, will perform their roles. You've got a few options: acting jointly, jointly and severally, or a hybrid approach. Each has its own nuances and potential pitfalls, so let's unpack them.
Acting Jointly: The All-for-One Approach
Imagine your attorneys as a tight-knit theatre troupe where every decision is made together, unanimously. It’s an all-for-one approach. This means for any decision, big or small, all your attorneys must agree and act as one. It’s fantastic for ensuring harmony and a unified direction, but here’s the snag: if one attorney can no longer act (say, they’re ill or decide to step down), the whole arrangement can stumble. This might mean having to go through the process of setting up a new LPA if you haven’t appointed any replacements.
Jointly and Severally: Flexibility Takes the Stage
Let’s jazz things up a bit. When your attorneys can act jointly and severally, they can make decisions together or independently. This is like having a jazz band where each musician knows the tune but can also solo when the moment calls for it. This setup is super flexible and ensures that if one attorney is unavailable, the others can keep the show going without missing a beat. However, the downside is that it requires a lot of trust in your attorneys, as any one of them can make decisions on their own.
Jointly for Some, Severally for Others: The Best of Both Worlds
Here’s where it gets interesting - a bonus way! You can specify that your attorneys must act jointly on certain matters (think major decisions like selling a house) but can act severally on others (daily care decisions, for instance). This approach gives you a blend of unity and flexibility, but it does require clear guidance on which decisions fall into which category to avoid any confusion or conflict.
Navigating the Pitfalls
Each of these options has its own set of considerations. Going with a joint arrangement requires a strong, cohesive group of attorneys who are all willing and able to commit to the responsibility. The jointly and severally option, while flexible, puts a lot of faith in the individual judgment of each attorney, which might not always align. And the hybrid approach, although it offers a tailored balance, requires meticulous planning and clear instructions to function smoothly.
What do I have to put in a Lasting Power of Attorney?
Within this script, you've got the freedom to include some direction for your cast — in this case, your chosen attorneys. This direction comes in two flavours: preferences and instructions. These little notes in your script can make a big difference, especially when it comes to the scenes covering property and finances, as well as health and welfare.
Preferences: The Suggested Improvisations
Preferences in your LPA are like gentle nudges or suggestions to your attorneys. They're your way of saying, "Hey, if it's possible, I’d really like it if you could handle things this way." However, these aren’t hard and fast rules. They’re more like improvisation cues that give your attorneys an idea of your wishes and values without boxing them into a corner.
For property and finances, a preference might be a suggestion to invest in ethical stocks or to keep supporting a charity you care about. It’s your way of guiding the decision-making process without mandating it.
When it comes to health and welfare, preferences could include your general wishes about your daily routine, diet, or how you’d like to be cared for if you’re not able to make these decisions yourself. Think of it as setting the scene for your ideal care environment, like preferring natural light and visits from family and friends, without making it an absolute requirement.
These would be worded like this:
‘I would like…’
‘I wish my attorneys to…’
Instructions: The Non-Negotiable Directives
Instructions, on the other hand, are your script’s non-negotiables. These are the directives your attorneys must follow, no ad-libbing allowed. It’s like saying, "In this scene, the character must always wear a red scarf, no exceptions."
For property and finance, an instruction might be a directive not to sell your house under any circumstances, or to always consult with a specific financial advisor before making investment decisions.
For health and welfare, instructions could dictate specific medical treatments you do or do not want to undergo, or they might outline exactly who should be consulted about your care.
It’s like choreographing a critical scene to ensure it unfolds exactly as envisioned, ensuring your personal beliefs and wishes are respected. These instructions are binding, ensuring certain lines are never crossed.
These instructions would need to be worded like this:
‘My attorneys must…’
‘My attorneys have to…’
Please be aware that if any instructions included in your Lasting Power of Attorney are not lawful, these will need to be excluded by the Court of Protection before your LPA can be successfully registered. For instance, instructions that involve support for actions like assisted dying, which are illegal, must be omitted from your LPA. This is important as it can considerably delay the registration process of your LPA.
Also, it's important to ensure that the instructions you provide are relevant to the correct type of LPA. Instructions related to health and welfare should not be included in a property and financial affairs LPA, and vice versa. Making sure your instructions are appropriate for the type of LPA you're setting up will help streamline the process.
Who are the Office of Public Guardian?
Before we dive into the heart of why enlisting a professional for your Lasting Power of Attorney is a wise choice, let’s set the stage by understanding what an LPA really is and introduce a key player in the process: the Office of Public Guardian (OPG). Imagine you’re the director of a play, and the LPA is your script, guiding your cast - in this case, your chosen attorneys - on how to perform should you ever be unable to direct them yourself due to health reasons. It’s your way of ensuring that your personal and financial affairs are in good hands, even when you can’t oversee them directly.
Now, picture the Office of Public Guardian as the behind-the-scenes crew that makes sure your play runs smoothly. They’re the ones who check your script, make sure it’s ready for showtime, and officially add it to the library of approved plays. However, as with any crew that’s juggling a lot of scripts.
What is the Role of the Office of Public Guardian for Lasting Power of Attorney?
The OPG plays a crucial role in the LPA process. They’re the guardians of the system, ensuring that every LPA is correctly registered and that the people appointed as attorneys are fit for the role. Their job is to protect the interests of those who take the wise step of setting up an LPA, acting as a safeguard against abuse and ensuring that attorneys act in the best interests of the person they're representing.
How to register a Lasting Power of Attorney? Understanding the Fees and Registration Process
Creating and registering an LPA comes with its set of fees (currently £82 per document), which cover the costs of reviewing and processing your document. These fees can vary, so it’s always a good idea to check the most current costs directly with the OPG or your professional advisor. These fees are normally charged in addition to a professionals fees so speak to your advisor about whether or not the fees are included in the price. Astute Will's price for drafting your LPA do not include the registration fees. The registration process itself involves submitting your carefully crafted LPA for official review and approval by the OPG, a step that makes your document legally binding.
The Reality of an Underfunded and Overworked Office
It’s important to highlight that the OPG, for all its critical work, operates under challenging conditions. They’re tasked with a significant responsibility, overseeing the registration and management of LPAs, often with limited resources. This reality can lead to delays and the need for patience from those submitting LPAs for registration. It’s not an ideal situation, but it’s the current state of play, underscoring the value of having a professional by your side to navigate these waters.
Can you change an Attorney in my Lasting Power of Attorney?
Changing your attorneys on an LPA is a significant decision, but it's one that you have the power to make if your circumstances or wishes change. Just like in theatre, the most important thing is that the final performance (or in this case, the document) aligns with your vision, ensuring that your affairs are managed just as you’d want them to be, now and in the future.
Perhaps later down the line your chosen attorney is not as fitting for the role as you envisioned, or maybe life has thrown a curveball that means they can no longer perform. There might come a time when you need to recast your attorneys. Whether it’s due to a change in relationships, circumstances, or simply a change in your wishes, it’s possible to make these adjustments, but there's a bit of a process involved.
Before Registration: The Easy Edits
If you’re still in the pre-registration phase, changing your attorneys is relatively straightforward. It’s like deciding to switch out actors before the play has been officially announced. You can simply amend your LPA document to reflect your new choice of attorneys, ensuring it meets all necessary legal requirements and then proceed with registering it as you would normally.
After Registration: A Bit More Script work
Once your LPA is registered, changing your attorneys becomes a bit more complex. At this stage, you can’t just amend the existing LPA. Instead, you would need to create a completely new LPA document that reflects your current wishes, including the appointment of new attorneys. This new document would then need to go through the registration process with the Office of Public Guardian (OPG) just like the original, meaning there’s a bit of legwork involved in ensuring your new cast is officially recognised.
Revoking the Current LPA
To officially bring in your new attorneys on board, you'll need to revoke your existing LPA. This involves formally declaring that your previous LPA is no longer valid. It’s important to communicate this change to your previous attorneys, ensuring they know they no longer have the authority to act on your behalf.
Considerations for a Smooth Transition
When considering a change in attorneys, it’s wise to think about the timing and implications. You’ll want to ensure there’s no gap where you're without the protection of an LPA, particularly if you’re relying on it for important decisions. Additionally, consider the emotional and practical impacts of changing your attorneys, especially if the current ones are close friends or family members.
Changing your attorneys on an LPA is a significant decision, but it's one that you have the power to make if your circumstances or wishes change. Just like in theatre, the most important thing is that the final performance (or in this case, the document) aligns with your vision, ensuring that your affairs are managed just as you’d want them to be, now and in the future.
Choosing your attorneys is a decision that deserves time, thought, and a deep understanding of both the roles to be played and the people in your life who can play them best. Like a director casting their play, you’re looking for individuals who can bring your wishes to life with integrity, dedication, and care. With the right cast, you can rest easy knowing that your script is in good hands, ready to be performed beautifully, come what may.
Can I do Lasting Power of Attorney myself?
I often get comments like this on Facebook when I talk about my services. Sure, it's possible to do it yourself, but let me tell you, partnering with a professional to draft your LPA is like having a trusted guide by your side on a journey through uncharted territory. Often mistakes are not realised until the point where a loved one has lost capacity and it's too late to rectify the error at that point. It’s not just about filling out forms; it’s about making informed, thoughtful decisions that will impact your future and that of your loved ones. Let's walk through why going professional is the way to go.
Friendly Advice Tailored Just for You
First off, a professional can provide personalised advice on how best to structure your LPA. This isn't a one-size-fits-all situation. How your attorneys can act, either jointly or separately, can have big implications down the road. A professional has the insight and experience to guide you through these decisions, ensuring your wishes are met in the most effective way possible.
The Importance of Dotting Your I's and Crossing Your T's
When it comes to legal documents, every detail matters. That’s where the attestation service comes in. This isn’t just about making sure everything is signed; it’s about ensuring every "t" is crossed and every "i" is dotted in accordance with the law. This meticulous attention to detail is crucial in making sure your LPA is valid and effective when it’s needed most.
Making Sure Your Voice is Heard
Now, onto the certification service. This step is all about protecting you. It involves a professional who can certify that you’re making your LPA of your own free will, without any outside pressure. It’s a safeguard, ensuring your decisions are truly yours and that you’re in a sound state of mind to make them. This isn’t just a formality; it’s a vital step in the process that adds a layer of legitimacy and protection to your LPA.
No More Waiting on Hold
According to the OPG annual report the OPG missed their target for quickly answering called by a massive 59%. If you’ve ever had to call a government office, you know it can be... let’s say, less than speedy. Anecdotally, I spend on average between 45-60 minutes on hold to the OPG, have you got time for that? A professional can take this task off your hands, saving you from endless hold music and frustration. They know whom to call, what to ask, and how to navigate these waters, making the process smoother and faster for you.
Crossing the Finish Line with Confidence
Finally, there’s the final document validation. The OPG, bless their hearts, are working hard with what they’ve got. But sometimes, mistakes happen. Having a professional receive and check the final document means you have an expert eye ensuring everything is as it should be. This final step can be the difference between a smooth process when the LPA is needed and a headache of bureaucratic snags.
In essence, setting up your LPA with a professional isn’t just a luxury; it’s an astute move. It’s about peace of mind, knowing that your wishes are captured accurately and will stand up when tested. It’s about efficiency, avoiding the pitfalls and delays that can happen when navigating this process alone. And most importantly, it’s about protection – for you, and for those you care about.
The DIY route might seem tempting, remember that some journeys are best taken with a guide it is not as simple as Facebook group Experts. When it comes to securing your future through an LPA, having a professional by your side is an investment in peace, protection, and personalisation. After all, your future is worth that extra mile, isn’t it?
If you're looking for a professional to assist with your Lasting Power of Attorney Joshua Young is an accredited member of the Society of Will Writers and fully insured to assist you. Head to www.astutewills.com/booknow to get started now.
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