Many people, even now don't like to talk about future planning with a solicitor.
People generally feel comfortable planning most events - they can talk about moving house, building an extension, booking a holiday, but when it comes to protecting their assets and the mere mention of wills - they literally quake at the knees!
Latimer Hinks held a presentation this week on Protecting your Family - planning for the future! The talk opened my eyes.
Did you know, if you and your spouse/partner have a joint account and your spouse/partner becomes unable to handle their affairs your bank can freeze the account?
In effect you would not be able to draw money or pay bills. The bank’s view is that a joint account operates with the consent of both parties so if one party cannot give that consent then the account cannot be operated.
Imagine if you and your partner/spouse have only one joint account with all of your money in and that account was frozen because one or the other of you loses capacity leaving you with no access to money?
BUT if you have a Lasting Power of Attorney in place authorizing someone (perhaps your other half) to deal with your financial affairs in the event you are not able to do so this would solve the problem.
For all those who were clever enough to make an Enduring Power of Attorney before October 2007 these documents are still valid however, no new ones can now be made and the alternative is to make a Lasting Power of Attorney instead.
A Lasting Power of Attorney is a document you sign, which enables whoever you appoint as your Attorney to deal with your financial affairs in the event of incapacity in the future (usually mental incapacity but can equally apply to physical incapacity).
Many people think that their other half would be able to deal with things for them in this circumstance but unfortunately, without a Lasting Power of Attorney (or former Enduring Power of Attorney) in place this is simply not the case.
Without the legal formality of a Lasting Power of Attorney no one would be able to gain access to your finances or pay bills on your behalf leaving your finances in a mess and your family distressed at a time when they are already going through the trauma of seeing someone they love lose their capacity.
Do you really want to leave this to chance?
Here are some do’s and don’ts tips for making Personal Affairs Lasting Powers of Attorney .
DON’T - just rely on the thought that “it won’t happen to you” or “someone else can deal with it if you can’t”. Think of an LPA as an insurance policy that you hope you never need but make anyway “just in case”.
2. DO - have the LPA registered straight away. This ensures that if the document is needed urgently you do not have to wait for the whole registration process to be completed. Having the LPA registered also gives you piece of mind that the document does not contain any errors as it is checked and approved at registration and any errors can be put right at this stage.
3. DO – appoint a second Attorney either to act with the first or as a replacement especially if your first Attorney is the same age as you. This ensures that should the first die during your lifetime there is a “back-up” to take over.
4. DO – seek advice from a Solicitor if you are considering making an LPA as LPAs can be complicated and if you attempt to do it yourself you may not know whether or not it will work until it is too late (i.e. you have lost capacity and cannot make another one).
5. DO – make an LPA if there is/are any family member(s) you really would not trust or want to look after your financial affairs as they could end up being that person if you do not choose someone yourself whilst you are capable or doing so.
6. DO – make an LPA if you are aware of animosity or conflict within your family (such as your children not get on) as leaving the decision up to them could result in them not agreeing and an independent person or solicitor could end up being appointed instead.
Showing posts with label lasting power of attorney. Show all posts
Showing posts with label lasting power of attorney. Show all posts
Monday, 6 October 2008
Wednesday, 3 October 2007
New Lasting Powers of Attorney - an insight
My previous post warned of the end of Enduring Powers of Attorney - Deadline Looming - the end of EPA's
It's now October and Lasting Powers of Attorney are now in place. Following is an insight into why you need one and how they work for you.
If you were to be incapacitated in the future, either physically or mentally, and, as a consequence, were unable to deal with your own affairs then awful problems would arise.
A spouse and other family members would not be legally able to deal with your affairs unless an LPA (or formerly an Enduring Power of Attorney (EPA) signed prior to the 1st October 2007) had earlier been executed.
Firstly, it should be pointed out that LPA’s are not merely for the elderly; they can be created by anyone and are a sensible precaution against accidents, illnesses and injuries that can incapacitate a person at any age. It is for this reason that provisions should be taken to avoid any complications that may arise if an LPA is not in place.
An LPA is a formal agreement created by deed in which one person (‘the Donor’) gives another person (‘the Attorney’) authority to act in their name and on their behalf. In effect, therefore, while capable of managing your affairs you select somebody who will be responsible for managing your affairs if you subsequently become incapable.
Unlike EPAs, a person can choose to delegate decisions affecting their personal welfare – including healthcare and medical treatment decisions – as well as decisions concerning their property and financial matters to their attorney(s). This will also avoid the full expense of invoking the full jurisdiction of the Office of the Public Guardian (formerly the Court of Protection) which is part of our judicial system that deals with the affairs of those who, by virtue of mental incapacity, are unable to deal with their own affairs.
The Donor can choose whether they wish to make a property and affairs LPA or a personal welfare LPA, or both. There is a separate form for each.
For an LPA to be executed there must be at least one Attorney chosen, but if more than one is chosen then the Donor must decide whether they are able to act jointly (that is they must all act together and cannot act separately) or, jointly and severally (that is they can all act together but they can also act separately if they wish). They can also act jointly in respect of some matters and jointly and severally in respect of others.
The extent of the powers granted
A decision can also be made as to the extent of powers that the Attorney can exercise. A general power in relation to all your property and affairs means that the Attorney(s) will be able to deal with your money or property and may be able to sell your house.
In relation to a personal welfare LPA a general power will include all healthcare decisions except: giving or refusing to consent to life-sustaining treatment (unless the LPA document expressly authorizes this); where the Donor has made a valid advance decision; refusing or consenting to medical treatment for mental disorder where the Donor is detained under the Mental Health Act 1983; or where the Donor is subject to guardianship under the Mental Health Act 1983
If you do not want your Attorney(s) to have such wide powers, you can include any restrictions that you like. For example, you can include a restriction that your Attorney(s) must not act on your behalf until they have reason to believe that you are becoming mentally incapable, or a restriction as to what the Attorney may do.
Certificate Providers
A valid LPA – whether it be a property and affairs LPA or personal welfare LPA – must include a certificate completed by an independent third party known as the “certificate provider” confirming that in his or her opinion:
· The Donor understands the purpose of the LPA and the scope of the authority under it;
· No fraud or undue pressure is being used to induce the Donor to create the LPA ; and
· There is nothing else that would prevent the LPA being created.
Registration of the LPA
The LPA cannot be used until it has been registered with the Office of the Public Guardian. It can be registered at any time after it has been completed and signed by all those who are required to sign. In the case of a Donor or an unregistered personal welfare LPA facing a medical emergency their attorneys would not be authorized to act on their behalf until the power is registered.
Once registered, a property and affairs LPA can be used while the Donor still has capacity (unless it specifies that it cannot) whilst a personal welfare LPA can only be used when the Donor no longer has capacity to make the particular decision affecting their healthcare or personal welfare.
The Donor can name up to five people to be notified when an application to register the LPA is made. An attorney of the LPA cannot be specified as a named person. If the Donor decides not to include anyone to be notified then a second person will be needed to provide an additional certificate. Including a named person is an important safeguard because if he or she lacks capacity at the time of registration they will be relying on these people to raise concerns .
If, after consideration of any objections from the named persons, the application for the registration of the LPA is accepted, then at this time the Attorney(s) has authority to administer the affairs of the Donor and notice of this authority together with a copy of the LPA should be sent to relevant people, such as the bank or building society, so that the account can be changed to enable the Attorney(s) to gain access for the purpose of looking after the Donor’s affairs (if desired).
This registration is a relatively simple and straightforward procedure and does not invoke the full jurisdiction of the Court of Protection referred to earlier, the latter being a very expensive and undesirable procedure.
We would strongly recommend that an LPA is made as soon as possible, even if this is done purely on a precautionary basis. LPA’s can be lodged in our strong room and only brought out and put into operation if necessary.
No-one knows what the future holds. An LPA will provide peace of mind in the event of incapacitation.
It's now October and Lasting Powers of Attorney are now in place. Following is an insight into why you need one and how they work for you.
If you were to be incapacitated in the future, either physically or mentally, and, as a consequence, were unable to deal with your own affairs then awful problems would arise.
A spouse and other family members would not be legally able to deal with your affairs unless an LPA (or formerly an Enduring Power of Attorney (EPA) signed prior to the 1st October 2007) had earlier been executed.
Firstly, it should be pointed out that LPA’s are not merely for the elderly; they can be created by anyone and are a sensible precaution against accidents, illnesses and injuries that can incapacitate a person at any age. It is for this reason that provisions should be taken to avoid any complications that may arise if an LPA is not in place.
An LPA is a formal agreement created by deed in which one person (‘the Donor’) gives another person (‘the Attorney’) authority to act in their name and on their behalf. In effect, therefore, while capable of managing your affairs you select somebody who will be responsible for managing your affairs if you subsequently become incapable.
Unlike EPAs, a person can choose to delegate decisions affecting their personal welfare – including healthcare and medical treatment decisions – as well as decisions concerning their property and financial matters to their attorney(s). This will also avoid the full expense of invoking the full jurisdiction of the Office of the Public Guardian (formerly the Court of Protection) which is part of our judicial system that deals with the affairs of those who, by virtue of mental incapacity, are unable to deal with their own affairs.
The Donor can choose whether they wish to make a property and affairs LPA or a personal welfare LPA, or both. There is a separate form for each.
For an LPA to be executed there must be at least one Attorney chosen, but if more than one is chosen then the Donor must decide whether they are able to act jointly (that is they must all act together and cannot act separately) or, jointly and severally (that is they can all act together but they can also act separately if they wish). They can also act jointly in respect of some matters and jointly and severally in respect of others.
The extent of the powers granted
A decision can also be made as to the extent of powers that the Attorney can exercise. A general power in relation to all your property and affairs means that the Attorney(s) will be able to deal with your money or property and may be able to sell your house.
In relation to a personal welfare LPA a general power will include all healthcare decisions except: giving or refusing to consent to life-sustaining treatment (unless the LPA document expressly authorizes this); where the Donor has made a valid advance decision; refusing or consenting to medical treatment for mental disorder where the Donor is detained under the Mental Health Act 1983; or where the Donor is subject to guardianship under the Mental Health Act 1983
If you do not want your Attorney(s) to have such wide powers, you can include any restrictions that you like. For example, you can include a restriction that your Attorney(s) must not act on your behalf until they have reason to believe that you are becoming mentally incapable, or a restriction as to what the Attorney may do.
Certificate Providers
A valid LPA – whether it be a property and affairs LPA or personal welfare LPA – must include a certificate completed by an independent third party known as the “certificate provider” confirming that in his or her opinion:
· The Donor understands the purpose of the LPA and the scope of the authority under it;
· No fraud or undue pressure is being used to induce the Donor to create the LPA ; and
· There is nothing else that would prevent the LPA being created.
Registration of the LPA
The LPA cannot be used until it has been registered with the Office of the Public Guardian. It can be registered at any time after it has been completed and signed by all those who are required to sign. In the case of a Donor or an unregistered personal welfare LPA facing a medical emergency their attorneys would not be authorized to act on their behalf until the power is registered.
Once registered, a property and affairs LPA can be used while the Donor still has capacity (unless it specifies that it cannot) whilst a personal welfare LPA can only be used when the Donor no longer has capacity to make the particular decision affecting their healthcare or personal welfare.
The Donor can name up to five people to be notified when an application to register the LPA is made. An attorney of the LPA cannot be specified as a named person. If the Donor decides not to include anyone to be notified then a second person will be needed to provide an additional certificate. Including a named person is an important safeguard because if he or she lacks capacity at the time of registration they will be relying on these people to raise concerns .
If, after consideration of any objections from the named persons, the application for the registration of the LPA is accepted, then at this time the Attorney(s) has authority to administer the affairs of the Donor and notice of this authority together with a copy of the LPA should be sent to relevant people, such as the bank or building society, so that the account can be changed to enable the Attorney(s) to gain access for the purpose of looking after the Donor’s affairs (if desired).
This registration is a relatively simple and straightforward procedure and does not invoke the full jurisdiction of the Court of Protection referred to earlier, the latter being a very expensive and undesirable procedure.
We would strongly recommend that an LPA is made as soon as possible, even if this is done purely on a precautionary basis. LPA’s can be lodged in our strong room and only brought out and put into operation if necessary.
No-one knows what the future holds. An LPA will provide peace of mind in the event of incapacitation.
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