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There are a number of reasons why you might need someone to make decisions for you, or act on your behalf generally this would be because you at some point feel you may not have the mental capacity to do so for yourself, It could just be temporary for example, if you are in hospital and need help with everyday things such as making sure bills are paid, Or you may need to make more long-term plans if, for example, you’ve had an accident or you need to make plans before you have been diagnosed with dementia or Alzheimers.
Lasting Powers of Attorney are only valid in England and Wales, and replaced the
old system of Enduring Powers of Attorney in 2007.
If you don’t want to give someone access to your bank account then there are
several options open to you
“He trusts me to make the right decisions for him and having an LPA in place has
enabled us to have future peace of mind”
You can plan in advance who and how you want someone to act on your behalf and
because it is registered by the Office of Public Guardian (OPG) they can intervene
and your attorney can be held accountable.
A restriction can be put into an LPA stating that it does not come into effect until you
lose the mental capacity to make decisions yourself.
At the moment, it takes about 16 weeks for an LPA application to be processed and returned to the Donor, so many clients ask for a General Power to be drafted while the LPA is being processed. The General Power is effective as soon as it has been signed and witnessed but becomes invalid when the Donor becomes incapacitated. A Lasting Power of Attorney remains valid until the Donor dies or revokes the Power – which he cannot do if he lacks capacity.
The alternative for a person who loses capacity and has no valid LPA is for his family (or in some cases the Social Services) to apply to the Court of Protection (CoP) to appoint a deputy; this is a long-winded and expensive business. The appointed Deputy – even if a member of the family – may have to provide security which can be for hundreds of thousands of pounds (though a special insurance policy can be effected to cover this).
They may have to produce accounts when the court demands them. The Deputies may also have to ask the Court’s permission to buy or sell the home where for example, it is no longer lived in by the Donor. It is definitely NOT the way to go. For a good illustration of how the Court of Protection can mess up a life, find the HEATHER BATEMAN story on the internet. You will then see the value in arranging a Power of Attorney.
The Donor – the person who wants to appoint attorneys – cannot apply for an LPA if he lacks capacity; a Donor must read all the information he receives from the Office of the Public Guardian – about 56 pages – which the prospective Attorneys should also read. Then he will need:
• Names, addresses, dates of birth, occupations and relationship to his
• Attorneys; ditto any replacement Attorneys
• One Certificate Provider plus one Person to Notify OR two Certificate Providers
• Any guidance or restrictions he wants to apply
• To note if he wants his spouse to remain an Attorney after a divorce or Separation
• Witnesses for all signatures
• Details of any Trust Corporation he might want to act as an Attorney
If a Donor – or other person who needs to have his affairs managed because he lacks capacity – has not got an LPA then the property is managed by the Court of Protection, which will result in delay, expense and imposition of restrictions. On the whole, it is better to let a professional deal with your application.
”Our Consultants deal with hundreds of LPAs every year”
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