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Intestacy

If you die without making a Will your estate will not necessarily pass on to whom you want.

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Will Writing

Wills are not just for passing on your estate. They can be used for Inheritance Tax planning, appointing Guardians for children, passing on businesses, protecting assets from care costs etc.

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Long Term Care

Steps can be taken to protect assets from being sold to pay for long term care fees.

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Lasting Power of Attorney

If you have mental incapacity no one (including spouses and close family) has automatic rights to take over your affairs.

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Business Succession

If you are a owner of a business will it continue after your death?

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Inheritance Tax

How do you reduce the impact of inheritance tax?

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Document Storage

Do you and your family know where your Wills are kept?

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Probate &
Estate Administration

Do you need help in administering an estate?

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Lasting Power of Attorney guidance (also covers Court of Protection and Advance Decisions)

If you have mental incapacity no one (including spouses and close family) has automatic rights to take over your affairs.

What happens if I cannot look after my own affairs due to mental incapacity?

If you become mentally incapable (through whatever cause) of handling your own affairs the Court of Protection will make individual decisions on your behalf and if the Court of Protection decides that someone needs to be appointed to make all decisions on an ongoing basis they will appoint a “Deputy” to make decisions on your behalf (the terms and length of the appointment will be set by the Court of Protection). Until a Deputy is appointed all your assets, including joint accounts and jointly owned houses, may be frozen. It is not possible to make a Lasting Power of Attorney after you have become mentally incapable.

The Deputy could be a relative or friend. Family and/or friends do not have any automatic right to take over your affairs.

lasting power of attorney

The process of applying to the Court of Protection is lengthy and expensive and it is clear that this could be a very difficult and trying time for all concerned. During the process access to your bank and building society accounts may not be possible.

It can take time for the Court of Protection to make a particular decision. Before a Deputy is appointed it may be necessary to ask the Court of Protection for many individual decisions. Each time the Court of Protection is approached there is a cost.

A Deputy may be asked to pay for indemnity insurance.

One of the services I offer is to take the strain of applying to the Court of Protection from the family and deal with all the matters from getting the Court of Protection forms and filling them out to the appointment of a Deputy by the Court of Protection.

Avoiding the Court of Protection - Lasting Power of Attorney

The only way to avoid having to go to the Court of Protection when someone loses their mental capacity is for them to have written a Lasting Power of Attorney whilst they still had mental capacity.

In this context an “Attorney” is someone appointed to act on someone else’s behalf, either now or in the future. You can appoint more than one Attorney.

What is a Lasting Power of Attorney (“LPA”)?

There are two types of Lasting Power of Attorney – Property & Financial Affairs and Health & Welfare. Each Lasting Power of Attorney is a separate document and you can have one without the other (or have a Health & Welfare LPA and an Enduring Power of Attorney (“EPA”) that was in place on 1 October 2007).

A Property & Financial Affairs Lasting Power of Attorney is a legal document that enables someone (the “Donor”) to appoint one or more persons to manage their financial affairs and property either now (and to continue to be should become mentally incapable in the future (this is not the case with an ordinary Power of Attorney) or if and when they become mentally incapable in the future. The Lasting Power of Attorney is signed by the Donor, a Certificate Provider and all the appointed Attorneys.

The Health & Welfare LPA allows Attorneys to make welfare and medical decisions on behalf of the Donor (including, if specified, life sustaining decisions) but only once the Donor has lost the mental capacity to make his own decisions. A Health & Welfare LPA Attorney may be a bankrupt but a Property & Financial Affairs LPA Attorney may not.

Lasting Powers of Attorney have to be registered (either by the Donor or by an Attorney) with the Office of the Public Guardian (“OPG”) before they can be used. Once registered, the Property and Financial Affairs LPA can be used immediately whether the Donor has lost mental capacity or not (if the Donor wants this) but the Health & Welfare LPA can only be used once the Donor has lost mental capacity to make decisions on the medical conditions he has specified in his Lasting Power of Attorney or on his general welfare.

Who can make a Lasting Power of Attorney?

Anyone over the age of 18, as long as they are mentally capable of understanding the meaning and effects of an Lasting Power of Attorney.

A certificate provider is required to certify this and also that he does not believe the Lasting Power of Attorney is being made fraudulently or under duress. The Certificate Provider can be someone who has known the Donor well for at least 2 years, someone from a recognised profession or someone who has the professional skills and expertise to be able to give the certificate (such as myself).

What powers does an appointed Attorney have?

The powers are set out in the Lasting Power of Attorney document. The widest powers in a Property and Financial Affairs LPA allow the Attorney to act in all financial matters including selling property, but the Donor can place restrictions on his Attorneys (or give guidance). Attorneys can make the normal gifts on behalf of a Donor that they would normally make (birthdays, Christmas, etc.) but any unusual or large gift needs to have approval from the OPG first.

A Property and Financial Affairs LPA can be written so that it comes into effect immediately on registration or only comes into effect should the Donor become mentally incapable to make relevant decisions.

living will

A Health & Welfare LPA gives Attorneys the authority to make any decision regarding welfare, accommodation, medication etc on behalf of the Donor, subject to any restriction the Donor may have included in the Lasting Power of Attorney. If specified in the Lasting Power of Attorney, Attorneys can make life sustaining decisions on behalf of the Donor. All decisions, however, should be made after consulting the relevant people involved. A Health & Welfare LPA can only be used once the Donor has lost (or is losing) their mental capacity.

Lasting Powers of Attorney can be written so that all the appointed Attorneys have to act together (known as “jointly”) or they can act separately (known as “jointly and severally”). Attorneys can be appointed to act jointly in some matters and jointly and severally in other matters. If Attorneys can only act jointly then if one of them dies, becomes mentally incapable or refuses to act (or becomes bankrupt, in the case of a Property and Financial Affairs LPA) the Lasting Power of Attorney fails. If Attorneys can act jointly and severally then if one of them dies, becomes mentally incapable or refuses to act (or is bankrupt, in the case of a Property and Financial Affairs LPA) the other Attorneys can continue.

An Attorney cannot act solely in the sale and purchase of a property if the Donor and Attorney are co-owners, without additional legal help.

Who can be an Attorney?

Anyone over the age of 18 and, in the case of a Property and Financial Affairs LPA, is not bankrupt.

Attorneys have a legal duty to act in the best interests of the Donor and to comply with the Code of Practice under the Mental Capacity Act 2005 and, wherever possible, involve the Donor in making decisions.

How is an LPA used while I am mentally capable?

The Donor should retain the document in their possession (possibly keeping it with their Will).

Only a Property and Financial Affairs LPA can be used while the Donor still has mental capacity (if it says so). If the Donor needs to use the Lasting Power of Attorney (say, he is going on a long holiday and he needs access to his bank account during this period), he can give the document to his Attorney(s) to provide evidence of their powers to, say, his bank. It is useful for the Donor to warn his bank in advance that this might happen.

What happens if my LPA is needed?

The Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used. A Lasting Power of Attorney can be registered at any time after it has been completed and signed by all of the Donor, the Certificate Provider and the Attorneys. It can be registered by the Donor or the Attorneys (or any one of the Attorneys if they are appointed jointly and severally). If it has not been registered by the time the Donor is becoming or has become mentally incapable of managing their own affairs, the Attorney(s) can register it then. When the Lasting Power of Attorney is registered, the Office of the Public Guardian will inform anyone named in it as someone who should be notified. There is a one-off registration charge of £130 per Lasting Power of Attorney (reducing to £110 from 1 Oct 2013)(which may be waived or reduced if the Donor has gross annual income under £12,000 p.a. or is receiving certain State benefits). The process takes a minimum of 6 weeks (to allow anyone sent a notice of intention to register to object) but can take up to 14 weeks. The Lasting Power of Attorney cannot be used during this interim period.

There is a duty under common law for the Attorney(s) to keep accounts and the Office of the Public Guardian can call on the Attorney(s) to account for their dealings at any time.

Other fees may be payable if the Court of Protection is required to authorise an activity outside of the normal powers of the Attorney.

It is possible to find out from the Office of the Public Guardian if a Lasting Power of Attorney has been registered for someone.

Risks and Safeguards

It is clear that a Lasting Power of Attorney is a very powerful legal document, so Attorneys must be chosen with great care (and should be people the Donor trusts implicitly).

Once the Lasting Power of Attorney has been registered, if there are concerns that an Attorney may not be acting in the Donor’s best interests under a Lasting Power of Attorney, the Court of Protection can become involved and further enquiries may be made.

An Attorney’s power to make gifts (to himself or others) or whether he can use his powers for the benefit of himself or others are restricted and an Attorney should seek advice from the Office of the Public Guardian if there is any doubt.

A Donor can revoke his/her Lasting Power of Attorney at any time while still mentally capable.

How do I get a Lasting Power of Attorney?

I can draft your Lasting Powers of Attorneys. I will guide you through the process and explain the decisions you must make and I can act as your Certificate Provider when it comes to signing the document. I can also register the documents on your behalf.

Advance Decision (also known as a Living Will)

An Advance Decision (“AD”) is a document you prepare while you still have mental capacity that stipulates that you do not want to have certain life sustaining treatments if you should develop certain medical conditions in the future, and at that time you do not have the mental capacity to inform your doctors of your wishes. The difference between an Advance Decision and the life sustaining part of a Health & Welfare LPA is that you make the decisions about your treatment in advance rather than your Attorneys making the decision for you at the time of your incapacity. Advance Decisions are legally binding.

If you make a Health & Welfare LPA giving your Attorney(s) power to make life sustaining decisions after you have made an Advance Decison, the Lasting Power of Attorney will override the Advance Decision.

How do I get an Advance Decision? Where can I find lasting power of attorney guidance?

I can draft your Advance Decision and provide expert advice on writing a Lasting Power of Attorney and all issues that arise from it.

It is essential to have good independent professional advice before embarking on any course of action, which is where I come in.

Please contact me if you need assistance in any of the areas above.