Our services Lasting Powers of Attorney, Enduring Powers of Attorney, Deputyship and Advice

We can advise on Lasting Powers of Attorney (LPAs) and deputyship applications, and help you complete and submit the forms. We can also advise on the registration of existing LPAs or Enduring Powers of Attorney (See “Lasting Powers of Attorney/Deputyship” below).

We aim to make the process as easy and accessible as possible, although there are built in notice periods and we are subject to the Court’s timescales.

We generally work on the basis of agreed fixed charges. A guide price is available on request but we do need some idea of your circumstances and intentions before committing to a figure. We would generally expect to agree a higher charge if you want to put in place complex, unusual or untried arrangements.

Capacity

It is important that, if challenged, an attorney can demonstrate that the person making the LPA had the necessary mental capacity when it was made. Although we can generally provide the required Certificate, it can be sensible to ask a doctor to do so to confirm capacity where the circumstances suggest any doubt, or any basis on which a person’s wishes may be challenged.

Other Advice

We are happy to discuss any queries about existing LPAs, EPAs or deputyships, to see if we can help, and we can obtain specialist advice where appropriate.

LASTING POWERS OF ATTORNEY/DEPUTYSHIP

Mental capacity is a complex legal/medical concept, which can be difficult to apply to the fluctuating reality of mental decline. While incapacity may sometimes be the clear result of injury or illness, in other cases decline is gradual and uneven until things reach a point where a person can no longer run their own affairs. At this point someone else has to step in to act on their behalf; to make sure bills are paid and obligations met, but also to take decisions about their way of life - where they should live, what care they should have etc.

To take these decisions or act on someone else’s behalf, even as a spouse or civil partner - to access a bank account, sign a cheque, sell property etc – that person needs the authority conferred either by a duly registered Lasting Power of Attorney (LPA) (or Enduring Power of Attorney (EPA) made before October 2007) or by a Court Order appointing them “Deputy”. Without such formal authority, there can be problems even where assets are held in joint names.

Lasting Powers of Attorney

The proactive choice is to make Lasting Powers of Attorney (while you have the capacity to do so) so that you can name the person(s) you want to take decisions on your behalf, define the scope of their authority and express any wishes about the way you would like to live if you were to become incapacitated. Although often seen as something linked to old age, or even following on from an unwelcome diagnosis, an LPA is a sensible step for most people at least to consider earlier on in their lives as accidents or illness can strike unexpectedly. This is particularly important where the person(s) you want to name is/are not a spouse or civil partner and/or where there is the risk of conflict between potential applicants for deputyship.

An LPA is also cheaper, less intrusive and more straightforward than an application for deputyship, and can be a great help if disaster strikes unexpectedly and family members have to deal suddenly with your finances and/or try to impress their views about your welfare on medical or social services staff. There are two separate forms:

• LPA for Property and Financial Affairs which, unless otherwise specified, can be used by the attorney(s) as soon as it is registered. In its standard form, an LPA gives the attorney immediate access to all your assets, so you may want to consider possible restrictions (which can carry their own drawbacks and have to be workable).
• LPA for Health and Welfare which can only be used once you become mentally unable to make or communicate decisions. As well as input in to medical decisions, this also gives weight to an attorney’s opinions about your welfare - where you live, for example, and/or what care you should have.

The forms are fairly short, but although they can be downloaded or even completed online, there are potential pitfalls and strict formalities to observe. In particular:

• The arrangement has to be workable in practice.
• An attorney is subject to the Mental Capacity Act, but anyone making an LPA must understand that this is a serious document which confers real authority so they must trust the person(s) named as attorney(s) and it is important to weigh up the advantages against the risks, accepting that the balance of risk may change as you age.
• Attorneys have to agree to act, and they sign the forms.
• Where attorneys are appointed to act jointly, the arrangement can fail if any one of them dies or becomes unable to act. Where attorneys are appointed “jointly and severally” any of them can act on their own as if individually appointed.
• A person making an LPA has to have the necessary mental capacity. Although it is usually sensible to approach a GP where there is any question about capacity (eg after illness or in old age, however unfair) that does not always resolve the problem and it may be necessary to consult a specialist.
• An LPA must be registered with the Office of the Public Guardian before it can be used. At this stage the OPG will scrutinise the form and may reject any that are not properly completed (and they can take a strict view). Apart from the wasted cost, this can be very serious if the person who made it has now lost the capacity to make a corrected LPA.
• Once executed, an LPA will generally continue to have effect (subject to registration) until it is revoked. There are exceptions: most obviously, divorce/dissolution of a civil partnership terminates the appointment of a spouse or civil partner (but does not necessarily revoke the Power).

LPAs should be reviewed from time to time and revoked or replaced if circumstances change.

Deputyship

Where a person loses capacity, without first making an LPA or EPA, the Court of Protection may appoint a “Deputy” to conduct their financial affairs, subject to any constraints imposed by the Court and subject to active scrutiny. This is usually a relative, a very close friend or Local Authority officer if no one else steps forward, but no one has a right to be appointed, and even a spouse or civil partner would have to prove their suitability. It is quite a long-drawn out process, with the Court requiring full background and financial details at an anxious time, and it can become contentious and expensive in the event of dispute between potential deputies.

Once appointed, a Deputy has to pay an annual security bond and produce annual accounts to the Court with expenses paid from the estate.

The Court can also make decisions about a person’s health or welfare, or appoint a Deputy to take such decisions, but does not normally do so and expects practical decisions to be taken by agreement between family members, social services and medical staff.

NOTE: This note is intended to highlight some of the issues surrounding LPAs and deputyship. It is not intended as advice and no one should rely on it for the purposes of making an LPA, applying for deputyship or at all. We would invite you to call us to discuss the position and likely cost.