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Durable power of attorney is a legal safety net for people who can no longer care for themselves, and alternate power of attorney is a less desirable resource.
Appointing someone you trust, usually a family member or friend, as your attorney to take control of your affairs if you become ill is a relatively simple task. People usually do this at the same time as they write the will.
Without an LPA, families may find themselves excluded from the finances of a sick loved one and forced to apply for vice. This involves a complicated court process and fees running into many thousands of pounds.
While many consider LPAs to be something primarily needed by older people, not having them can cause even bigger problems for young families. Anyone with dependents should get a durable power of attorney, just in case.
Protect yourself against a catastrophe: it is better to resolve an LPA while you are still mentally capable
What is a durable power of attorney?
There are two types of LPA, covering money and health, and you can get one or both if you are 18 or over and have the mental capacity to do so.
LPAs allow one or more people you trust to take control of your affairs if you can no longer make financial or medical decisions for yourself.
Taking the step of registering an LPA does not mean that it automatically comes into force. That will only happen if you lose the ability to act on your own behalf.
If you still have some capacity, but not full capacity, lawyers are expected to consult with you and in such circumstances you can still take the initiative when you feel capable.
In any scenario, your attorneys should always act in your interest and not their own.
A property and financial affairs LPA allows your solicitors to do anything from paying household bills to managing investments and selling your home, if, for example, care home bills need to be covered.
Health LPAs give lawyers the ability to make decisions about your healthcare, including your treatment and whether you need residential care.
You can appoint a solicitor as your solicitor but of course they will charge you for their services and the bills can pile up if you are ill for a long time or have complicated matters.
The Association of Life Lawyers points out that suffering an accident or becoming seriously ill can occur at any stage of life.
“The everyday tasks of managing your accounts, paying your bills and maintaining your property would become very difficult, if not impossible,” he says.
‘In the LPA, you appoint one or more “attorneys” who will be able to make decisions on your behalf. A lawyer is anyone you choose and trust. He or she must consider your best interests when making a decision on your behalf.
‘It is also important to discuss all of these matters with family and friends, particularly those you choose to appoint as your attorneys, while you can, so that your attorneys are aware of your wishes should you lose capacity. ‘
STEP’s body of inheritance professionals say: ‘A qualified adviser can help you prepare an LPA, which can ensure you have considered all aspects and avoid problems later, especially if you are unsure of the process or have complex issues.
‘When undertaking an LPA, your choice of solicitor is very important. The responsibility that falls on the person acting as a lawyer should not be underestimated.
“Careful consideration and diligent planning are needed to help ensure they are the right person for the job, have your best interests in mind, and respect the values you hold, if and when you lose the ability to make decisions.”
The LPA system replaced “durable powers of attorney”, which were granted until 1 October 2007. If someone has an old EPA, they can still use it for financial and property matters, but an LPA will need to be created to cover health and well-being. .
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> UK Government information on property and finance and health and wellbeing LPAs
How is an LPA made?
The LPA system is run by the Office of the Public Guardian, which also handles complaints if something goes wrong.
You must complete and submit forms and pay a fee of £82 per LPA. It then takes up to 16 weeks to register them, assuming there are no errors in the application. After that there is nothing else to do unless you need to put them into practice.
Specialist LPA services or solicitors will help you with all of this, and many people prefer to get professional assistance to ensure they are set up correctly and working according to your wishes.
For example, a lawyer can help you decide if you need more than one lawyer and, if necessary, whether you should agree all decisions jointly or whether you can choose to make decisions independently when it is more practical.
Costs vary widely, especially between law firms, but you can expect to pay between £300 and £400 for help with an LPA, with deals available if you want to get both at once or if a couple is setting them up together. However, the bill may be higher if you have complicated issues.
You can cancel the power of attorney or decide to appoint different attorneys if you wish.
If someone is dissatisfied with the way a lawyer conducts a person’s affairs, the OPG may carry out an independent investigation into your complaint against the LPA.
What is the deputy?
If you do not set up an LPA, your family may face a costly court challenge to take control of your funds if necessary.
Deputies are also subject to constant oversight by the OPG, because they were not personally elected by the person whose affairs they handle.
If you apply to be an MP, the Court of Protection will decide whether you are suitable or not.
The Association of Life Lawyers says: ‘Although the Court endeavors to appoint someone who will act in your best interests, you may have someone in charge of your affairs whom you would not have chosen if you had capacity.
‘It could even be someone you don’t know and not necessarily a family member.
«Furthermore, filing a claim with the Court is time-consuming and expensive. It can take months before someone can access your finances.
“This can be a very stressful time for your friends/family, who may end up spending their own money trying to pay their bills while waiting for a court order.”
PASO says: ‘Deputies are supervised by the Ombudsman’s Office and must write a report each year explaining the decisions they have made as a deputy.
“It’s important to understand this, as it can be a lot of work.”
How do you apply for deputation if there is no LPA?
If a friend or family member loses mental capacity and does not have a current LPA, you can apply to the Court of Protection to become their locum.
If there is no friend or family member who is willing or suitable, the court may appoint a professional.
The process can take six months and involves conducting assessments, filling out forms and paying a “surety bond,” a form of insurance in case a deputy proves unreliable.
The court will determine what decisions a deputy can make, and you should stick to only those that are authorized.
Costs include £408 per request for deputation – property, finances and personal welfare are separated as with LPAs: a £100 assessment fee for new MPs, £494 if the court wants a hearing and annual supervision fees of £35 to £320.
It is also advisable to get the help of a lawyer. The Association of Life Lawyers advises: “When considering applying to become an MP, seek professional legal advice to ensure that the correct authority needed by the MP is applied for, such as the authority to sell property, as this may not be automatically granted “.
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