Matters to be aware of when arranging a lasting power of attorney for someone residing in the UK
A lasting power of attorney (LPA) is a way of giving someone you trust legal authority to make decisions on the person’s behalf if they lack mental capacity at some point in the future.
In order for someone to take out a lasting power of attorney, they must be over the age of 18 and have mental capacity. The person must not be put under any pressure to put the LPA into place. When assisting someone who is elderly with taking out an LPA, a capacity assessment may need to be carried out first to ascertain whether the person has capacity to take out the LPA, otherwise, a Deputyship may be required instead. If you instruct a solicitor to assist with taking out the LPA, the instructions must be taken from the person that the LPA relates to, unless a Deputyship is required in which case, instructions can be taken from someone else, such as a family member.
There are two types of LPA’s which require separate applications; one for welfare and one for property and affairs. The welfare LPA deals with health and care matters including decisions relating to medical care and where the person should reside, whereas the property and affairs LPA deals with assets and finances including paying bills. The fee for each application is currently £110, however, a fee exemption or remission may apply if the person is in receipt of certain benefits or has a gross annual income of less than £12,000. The LPA is not valid until it is registered with the Office of the Public Guardian, which can take up to 8 weeks. The attorney cannot act under the LPA until registration is complete. An LPA is individual to each person and therefore it is not possible to have a joint LPA for two people.
It is important to choose an attorney that is trustworthy who you are confident will act responsibly and who has the necessary skills to make decisions on the person’s behalf that are in their best interests. If unsure, a professional attorney may be appointed to carry out this duty. It is also recommended that a replacement attorney is provided to ensure a smooth transition of the management of the person’s affairs in the event of something happening to the primary attorney. It is possible to allocate more than one attorney and they can be appointed ‘jointly’ or ‘jointly and severally.’ If one of the attorney’s you wish to appoint lives abroad, which is permitted, you may wish to appoint a further attorney to be appointed jointly and severally, which will allow the local attorney to act without the other attorney’s permission if required. If attorneys are appointed jointly, they must act together and cannot make decisions on their own without the other attorney’s approval. However, appointing more than one attorney can be problematic as both attorneys may have differing views on a decision and this could lead to disagreements. There are also various complexities which might arise from a ‘several’ appointment and as such, these should only be created with caution.
We assist clients with putting in place LPA’s and are able to advise on the LPA procedure, as well as assist with the application process.
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