In the UK somebody somewhere has a stroke every three minutes and twenty-seven seconds. Not only are strokes serious medical incidents, but they can also cause you to lose your mental faculties. After a stroke, you may not be able to make decisions in the same way as you could before. Capacity can be lost in numerous ways, from illness, diseases, accidents, the list goes on.
You might not think that’s a problem: your family will take over your day to day living and manage your financial affairs on your behalf. But without power of attorney, your caregivers will struggle. Banks won’t give them access to your finances automatically, meaning that they could lose access to your money.
Although they can apply for power of attorney through the courts if you suffer a severe illness that deprives you of the ability to make your own decisions, this process can take a long time. It’s much better to arrange for close ones to have access to your critical financial affairs before you get ill or incapacitated.
What Is Lasting Power Of Attorney?
Lasting Power of Attorney is a legal document which gives selected people the power to manage your personal and financial affairs on your behalf, should you be incapable of doing so yourself. The law calls people who have lasting power of attorney over your affairs “attorneys.”
You choose to give people lasting power of attorney while you still have the capacity to do so. The person you select can be anyone, but most people choose somebody they trust, like a friend or family member. The lasting power of attorney applies from the moment that you lose the ability to make decisions yourself. It can also be used at your direction by your attorney’s whilst you do have the capacity. This is helpful where mobility or hearing might be an issue.
It’s important to note that lasting power of attorney only applies in situations in which you are incapacitated or whilst you have the capacity, it is at your direction. You may lose capacity in the days following a stroke, but you could also recover in the following weeks and months. Once you have recovered and can make decisions again, your representative must immediately assist you to make your own decisions, only act at your direction or when you are unable to do so.
Why Should You Grant Lasting Power Of Attorney?
Although you are not obliged to grant anyone lasting power of attorney, there are many benefits of doing so.
Peace Of Mind
If you believe that you may get sick (or even if you don’t), it can help to know that there’s somebody in your life who you trust to take care of your affairs, should you be unable to do so. Having a person you trust ready to take over should you become incapacitated means that you don’t have to worry about them getting access to money to pay for your care or medical treatments, cover bills and expenses, or pay for the running of your household.
Remember, people of all ages can get peace of mind by nominating an attorney. Although age plays a factor in your likelihood of becoming incapacitated, people of any age can be involved in accidents which could impair their ability to make decisions. Granting lasting power of attorney gives you peace of mind that somebody can carry out your financial and medical wishes event of a medical emergency.
Your Next Of Kin Have No Legal Right To Manage Your Affairs
Many people think that once they become incapacitated, the law automatically gives their next of kin the right to access their finances and manage their personal affairs. But this is not what it says. The law grants next of kin no rights at all. Your next of kin might struggle to sort things out in the intervening period whilst they apply for a deputyship order. Furthermore, it is far more expensive to apply for deputyship once you become incapacitated which is why it is better for both you and the people you love to do it in advance.
You Cannot Appoint An Attorney Once Incapacitated
As the person whose affairs are to be managed, it should be your decision whom to appoint as your attorney. However, if you wait until you become incapacitated, the court will choose somebody to act on your behalf, and that might not be the person you want. Remember, once you are no longer capable of signing the lasting power of attorney legal document, you can no longer choose your representative.
The Types Of Lasting Power Of Attorney
The law divides the power of attorney into two types.
- Health and welfare. The health and welfare lasting power of attorney gives you the right to nominate people you trust to manage your healthcare, medication and care environment if you get sick. A time may come when you’re not able to make these decisions yourself, so the lasting power of attorney gives your next of kin the legal right and duty to manage these decisions on your behalf. Making these decisions in advance is essential. You might want to remain in residential care, for example, but without nominating somebody to act according to your wishes in advance, you could end up in a care home. Without granting lasting power of attorney, you might also be subjected to treatments that you would not have voluntarily chosen.
- Property and financial affairs. The property and financial affairs lasting power of attorney gives you the ability to nominate a trusted representative to manage your financial affairs located in England and Wales. You can personalise the lasting powers of attorney document to specify how and when powers are granted. Traditionally, the document stipulates that control of your financial affairs passes to your trusted representative when you lose capacity and whilst you have the capacity at your direction. However, you can create more comprehensive documents which grant powers if you leave the country, suffer mobility issues, or experience a more general illness (which doesn’t necessarily interfere with your ability to make decisions).
How Much Does Lasting Power Of Attorney Cost?
The cost of registering a lasting power of attorney in England and Wales is currently £82. You can, however, apply for an exemption under certain circumstances.
Although the application fee to register a lasting power of attorney is £82, you could be eligible for a 50 per cent reduction if you earn less than £12,000 per year before tax. You may also qualify for an exemption if you receive means-tested benefits, which means that you don’t have to pay anything at all.
The cost of registering a lasting power of attorney in Scotland is £77 and £127 in Northern Ireland.
Solicitors Charges For Power Of Attorney
Of course, this is the official government fee for formally registering a lasting power of attorney document. You’ll also have to pay legal solicitor fees too if you get a professional to draft the text for you. Mental capacity solicitors charges for power of attorney can vary depending on the solicitor and legal services required.
It’s best to speak to your solicitor individually for a quote, but prices usually start at around £450, including VAT. Check our fees page for our current rates.
Remember, you don’t have to use a solicitor to draw up a lasting power of attorney document if you feel confident to create one yourself. However, errors in the document could lead to serious ramifications in the future, which is why it is advisable to seek the services of a legal professional. Solicitors can ensure that the document is legally valid and binding.
How To File For Lasting Power Of Attorney?
Filing for lasting power of attorney is a relatively straightforward process.
The first step is to choose your attorney – the person who will act on your behalf should you lose capacity.
The next step is to fill out the forms to appoint them as your attorney, ideally with the supervision of your solicitor. You can find these forms on the gov.uk website, or ask a legal professional to provide them.
The final step is to register the lasting power of attorney with the Office of the Public Guardian.
The process can take up to 12 weeks, which is why it’s crucial to begin before you become incapacitated. Ideally, you will have set up your LPA before you are no longer able to make decisions yourself.
Who Should Set Up Lasting Powers Of Attorney?
Although lasting power of attorney is a legal facility most often associated with the elderly, it is something that can benefit all people over the age of 18.
The Charity Age UK says people can suffer debilitating illness and disease at any stage in life. Young people can become involved in accidents or because of early-onset conditions. The charity also says that people who have already been diagnosed with a disease should think carefully about granting powers of attorney. Doing so can help to make life easier for their next of kin should they lose capacity.
There are all kinds of reasons people might lose capacity at any age. Drug use, for instance, can leave individuals psychologically impaired and unable to make rational decisions themselves. You could enter a coma after a fall or motor vehicle accident and need somebody you can trust to manage your affairs. You could have become concussed during a sporting event, and need another person to handle your medical circumstances. The situations in which you might need a lasting power of attorney are almost endless.
Who Oversees The Lasting Power Of Attorney Process?
In England and Wales, the Office of the Public Guardian oversees the lasting power of attorney process. The Office was set up to protect people in England and Wales who do not have the capacity to look after their affairs, whether medical or financial.
The Office of the Public Guardian is an executive agency, under the sponsorship of the Ministry of Justice. Through the Office of the Public Guardian, you can make lasting powers of attorney online, claim refunds for lasting power of attorney fees, act on behalf of a person who has lost capacity, make financial decisions on behalf of somebody else, and get help with paying fees.
In Scotland, the Office of the Public Guardian in Scotland oversees the lasting power of attorney process. If you live in Scotland, the process is slightly different. Powers of attorney are divided into three: one for personal welfare, one for financial matters, and one which combines the two. The latter is the most common.
If you live in Northern Ireland, then you’ll need to register your application with the High Court and the Office of Care and Protection. In Northern Ireland, your attorney does not need to register until you are no longer capable of managing your affairs.
Why Choose A Solicitor To Write A Lasting Power Of Attorney?
Although you can create and submit a lasting power of attorney document yourself, it’s often better to have a lasting power of attorney solicitor do the work for you. Here’s why.
- A full assessment. It may not always be clear to those without experience in these matters what type of lasting power of attorney to grant. As we’ve discussed, there are a variety of powers you could grant a trusted representative. You may, for instance, only need to grant lasting powers of attorney for health and welfare, but not financial matters. A solicitor will also be able to inform you of the various legal permutation of the document, helping you create a bespoke plan for your situation.
- Guidance through the legal process. The process of creating, submitting, and validating a lasting power of attorney can be complicated. Solicitors can oversee the entire process, ensuring that it remains error-free.
- Support from a solicitor. If you get stuck during any part of the process, you can call up your solicitor for guidance and advice.
- Preparation of documents. A solicitor can prepare all your lasting power of attorney documents for you. Once prepared, all that’s left for you to do is sign them. The solicitor will then send them off for final processing.
- Registration. If you don’t want to file your lasting power of attorney with the Office of the Public Guardian yourself, a solicitor can do it for you.
Choose MJR Solicitors
If you would like legal advice and professional assistance drafting and submitting a lasting power of attorney document, get in contact with MJR Solicitors today via firstname.lastname@example.org or 01243 945054. We are authorised and regulated lasting power of attorney solicitors, and happy to answer any queries, no matter how big or small.
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