Top Tips for Putting a Lasting Power of Attorney in Place
16 April 2021
At some point in the future any one of us could become unable to manage our own affairs. This is usually because of old age, illness or an accident. If this happens, who would deal with your property, your bank accounts or decide what the medical treatment you receive?
Most people would say "my wife or my husband will deal with it" or "I'm sure my kids will make sure I'm OK".
But in England and Wales, the reality is that your husband, wife and children have no automatic legal right to manage your affairs if you can't.
In these circumstances, your loved ones would have to apply to the court to become your 'Deputy' before they can deal with matters for you. This is a long and expensive process for your family, during an already distressing time.
The only way to give your loved ones the authority to immediately step in and make these decisions for you, is by making a Lasting Power of Attorney while you're able to.
A Lasting Power of Attorney (LPA) is designed to protect you and your affairs. It allows you to choose someone you trust to make decisions on your behalf. The person you choose is called your attorney and the decisions they make can either relate to your financial affairs or your health and care (or both).
If you are ready to put an LPA in place, here are our top tips:
Top tip 1 - actually make your Lasting Power of Attorney
This is the first and most important of all the top tips. It is one thing to think it's a good idea, but it's another to actually do it.
If you wait until it's needed then you'll have waited to long. Only you can make your LPA, appointing the people you want to have authority to deal with matters on your behalf. If you don't make an LPA while you're able to, your loved ones will have to go down the lengthy and expensive route of applying for a Deputyship Order instead.
Top tip 2 - decide what your LPA should cover
There are two types of LPA available in England and Wales. One covers health and care and other covers financial decisions. You can set up just one or both types.
As the name suggests, a health and care LPA covers things such as medical treatment, healthcare and general welfare. Your attorney may need to make decisions such as whether you should be cared for in a care home or in your own home, and whether you should receive certain medical treatment.
A financial decisions LPA covers all of your financial matters, including any money, property, shares or other assets that you own in England or Wales. Your attorney would have legal authority to access your bank accounts, manage your money and sell your property, for example.
Top tip 2 - decide who to appoint as your attorney
When you appoint an attorney to act on your behalf, you need to completely trust them. They may have control of some important areas of your life such as your finances, your property and your welfare.
But trust is not the only issue - your potential attorney should also be happy to take on the role. Ask yourself "are they capable and is it practical?" Anyone who is not local to you or lives in another country may not be the best choice.
Top Tip 3 - consider what happens if your Attorney is unable to act
If your attorney dies before you or is unwilling or unable to act, this can cause problems. Strongly consider appointing replacement attorneys in your LPA. This will help keep you protected if your initial appointment of attorney doesn't work out.
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Top Tip 4 - consider appointing more than one Attorney
You can appoint more than one attorney to act together if you like, but whether this is right for you depends on your circumstances. If you do appoint more than one attorney, you need to decide how they will make decisions about your affairs.
Do you want them to have to agree before anything can happen or are you comfortable that they can make decisions independently of each other? You may feel that having them agree is safer, but be aware that by including this you could make the LPA ineffective if either attorney disagrees or becomes unable to act. This could mean that neither of your attorneys can act because you've specified they can only make decisions together.
In this top tip, and in most of the others, we say you should only appoint attorneys that you completely trust. If you completely trust them you should feel comfortable allowing them to act independently of each other. This means that if one of the joint attorneys dies or is unable to act, the other attorney can continue to make decisions on your behalf.
Top Tip 5 - decide if your attorney can act now, or only when you can't
When making a financial decisions LPA, you'll need to decide whether you want your attorney to make decisions for you now, while you're still able to make your own decisions, or only when you cannot make decisions yourself. You can decide when a financial decisions LPA comes into effect, while a health and care LPA will only ever come into effect when you're unable to express your own wishes.
Many people think it's better to ask their financial decisions attorney to act only when they cannot make decisions for themselves, however, this may not always be true. Sometimes it can be practical to allow your attorney to begin managing your finances even while you still have the capacity to make these decisions yourself.
Ultimately it's a personal choice, but if it's practical for your attorney to help with your financial affairs and you trust them implicity (as you should) there's no reason why they can't begin acting straight away.
Top Tip 6 - register your Lasting Power of Attorney
Your LPA needs to be registered by the Court of Protection before it can be activated.
You have two options, you can either register the Lasting Power of Attorney as soon as it's in place and signed by you and your attorney, or leave it to be registered at a later date. If you wish to register your Lasting Power of Attorney then the Court charges a fee of £82 for each LPA.
We would always recommend that you register your Lasting Power of Attorney straight away. The application and registration of the LPA can take around 12 weeks. By registering it now your Lasting Power of Attorney can be activated and ready for your attorney to use it when they need it.
If you decide to not register it and your attorney needs to act on your behalf, there could be a 12 week delay before it can be used. This could be at a critical time when swift decisions need to be made and action taken.
At Co-op Legal Services we have an experienced team who can discuss your circumstances, explain your options and help you put your Lasting Power of Attorney in place. If you want us to, we can also deal with the registration and activation as well, giving you total peace of mind. We work on a fixed fee basis to ensure you get no nasty surprises when putting your LPA in place.