As much as we would not wish to consider it, sometimes our nearest and dearest suffer a mental incapacity which means that they can no longer manage their own affairs. Such situations are distressing to their family. Matters are made worse in that to deal with their affairs, you may have to apply for a Court of Protection Order which is a lengthy, complicated and expensive procedure. Such distress can be lessened by putting in place, in advance, a Lasting Power of Attorney to deal with Property and Affairs or Personal Welfare or both. When properly prepared and granted, these enable a family to deal with the affairs of the person as soon as they lose mental capacity without the need of applying for a Court of Protection Order.

Lasting Powers of Attorney are lengthy and complex and you need to be fully advised with regard to the legislation and the procedure and guidlelines relating to the same. Other than appointing an Attorney under the Power and also giving details, if required, of other persons to be notified in the event of the Power being used, it is also a legal requirement that each Power of Attorney has a Certificator who certifies that the guidelines procedure of the Power has been complied with. Without this, the Power of Attorney is not effective. As well as preparing the Lasting Power of Attorney for you, we can stand as Certificators.

Older people are clients who seek the same legal services as younger clients. When applying the law, it is inappropriate to identify or classify people by age or the description “elderly”. We respect the views and experience of older people and recognize their autonomy and independence. However it is our experience that our elder clients often have requirements which are not met by other clients. Dealing with older clients requires an understanding of the problems that they may face and may present to others in particular the implications of the decline in physical ability or mental capacity. Such decline leads to dependence on others and can result in vulnerability and therefore we have a duty and role in protecting and empowering our elderly clients. Accordingly, we have a department at our offices dedicated to our older clients and their specific legal needs and requirements. Our services cover Estate Planning and Asset preservation advice. Our office provides easy access to car parking and disabled facilities. If required, we can in most cases, arrange home visits.

Have you thought about making a Lasting Power of Attorney?

No one wants to think about the possibility of becoming ill, but consider for a moment what would happen if you became ill overnight, had an accident or a stroke, or started to suffer from Alzheimer’s or dementia.

  • Who would pay your bills?
  • Who would be able to get access to your bank accounts?
  • Who would have the authority to sell your home if a sale became necessary?

The answer is no-one, unless you have made a Lasting Power of Attorney (LPA). A Lasting Power of Attorney is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or make decisions on your behalf.

The Lasting Power of Attorney gives you more control over what happens to you if, for example, you have an accident or an illness and can’t make decisions at the time they need to be made (you ‘lack mental capacity’).

Therefore, you should make an LPA if you have been diagnosed with, or think you might develop, an illness which might prevent you from making decisions for yourself at some time in the future.

The kinds of illness which might prevent you from making decisions for yourself include:

  • dementia
  • mental health problems
  • brain injury
  • alcohol or drug misuse
  • the side-effects of medical treatment
  • any other illness or disability.

To make an LPA you must be aged 18 or over and you must be capable of making decisions for yourself, i.e. have mental capacity.

Types of LPA

There are 2 types of LPA. These are:

  1. Lasting Power of Attorney for Health and Care decisions
  2. Lasting Power of Attorney for Financial decisions

You can choose to make one type or both.

Lasting Power of Attorney for Health and Care decisions

Use this LPA to give an attorney the power to make decisions about things like:

  • your daily routine, e.g. washing, dressing, eating
  • medical care
  • moving into a care home
  • life-sustaining treatment

It can only be used when you are unable to make your own decisions.

Lasting Power of Attorney for Financial decisions

Use this LPA to give an attorney the power to make decisions about money and property for you, for example:

  • managing a bank or building society account
  • paying bills
  • collecting benefits or a pension
  • selling your home

It can be used as soon as it is registered, with your permission.

Choosing your attorney

You can choose one or more people to be your attorney. If you appoint more than one, you must decide whether they will make decisions separately or together.

Who can be your attorney

Your attorney can be anyone 18 or over, such as:

  • a relative or a friend
  • a professional, e.g. a solicitor
  • your husband, wife or partner

You must appoint someone who has the mental capacity to make their own decisions.

When choosing an attorney, think about:

  • how well they look after their own affairs, e.g. their finances
  • how well you know them
  • if you trust them to make decisions in your best interests
  • how happy they will be to make decisions for you

However, you cannot choose someone who is subject to a Debt Relief Order or is bankrupt if you are making an LPA for financial decisions.

If there is more than one attorney

If you are appointing more than one person, you must decide if they will make decisions:

  • separately or together – sometimes called ‘jointly and severally’ – which means attorneys can make decisions on their own or with other attorneys
  • together – sometimes called ‘jointly’ – which means all the attorneys have to agree on the decision

You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.

Attorneys who are appointed jointly must all agree. If they cannot agree a decision, then they can only make that decision by going to Court.

Replacement attorneys

When you make your LPA you can nominate other people to replace your attorney, or attorneys, if at some point they cannot act on your behalf anymore.

Once you have made your LPA it will have no authority whatsoever until it has been registered with the Public Guardianship Office.  There is no time limit for registering the LPA once it has been properly signed.  You could therefore properly execute the LPA but choose not to register it until or unless your Attorneys need to use it.  However, if you take this option you should realise that if something happens to you very suddenly your Attorneys would not be able to use the document immediately as they would have to wait some weeks for it to be registered.

Costs

Our fees for preparing one LPA is as follows:-

  • £500.00 plus VAT of £100.00
  • Disbursements i.e. bankruptcy searches against each attorney at a cost of £2.00 for each name
  • The Public Guardianship Office charges a registration fee of £82.00
  • We do not charge for standing as a Certificate Provider.

If you decide you wish to make both LPA’s, our costs are:

  • £800.00 plus VAT of £160.00.
  • Disbursements i.e. bankruptcy searches against each attorney at a cost of £2.00 for each name
  • The Public Guardianship Office charges a registration fee of £82.00 for each LPA.
  • We do not charge for standing as the Certificate Provider.

Should you wish to instruct us as a couple and decide to have one LPA each, then our costs are:

  • £800.00 plus VAT of £160.00
  • Disbursements i.e. bankruptcy searches against each attorney at a cost of £2.00 for each name
  • The Public Guardianship Office charges a registration fee of £82.00 for each LPA.
  • We do not charge for standing as the Certificate Provider.

Should you wish to instruct us as a couple and decide to have two LPA’s each then our costs are:

  • £1,500.00 plus VAT of £300
  • Disbursements i.e. bankruptcy searches against each attorney at a cost of £2.00 for each name
  • The Public Guardianship Office charges a registration fee of £82.00 for each LPA.
  • We do not charge for standing as the Certificate Provider.

If you would like more information or wish to make an appointment please contact:-

Rowland Tildesley & Harris

1 Rose Hill

Willenhall

West Midlands

WV13 2AR. 

Telephone: 01902 366571

Fax:  01902 608097

Email:         tracey.messenger@rthlaw.co.uk

                   joanne.turner@rthlaw.co.uk