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When Should I Make a Lasting Power of Attorney?
March 18, 2024

In this blog, our experienced Private Client lawyers consider frequently asked questions relating to Lasting Power of Attorneys (LPAs).

What is a Lasting Power of Attorney?

An LPA is a legal document that allows an individual (the donor) to appoint one or more people (the attorneys) to make certain decisions on their behalf if they lack the mental capacity to make those decisions themselves.

What are the types of LPAs?

There are two main types of LPA:

  1. Property and financial affairs. This allows attorneys to make decisions about your property and finances, such as managing a bank or building society account, paying bills, collecting benefits or a pension, and selling your home.
  2. Health and welfare. This enables a donor’s attorneys to decide on health and welfare arrangements, including your daily routine (washing, dressing, eating), medical care and treatment, and moving into a care home.

What is mental capacity?

Mental capacity is the ability to understand information, make decisions and communicate those decisions about your life.

Your capacity to make a decision can vary depending on the time the decision needs to be made and the type of decision you need to make.

People who cannot make certain decisions at certain times are said to ‘lack capacity’.

Who decides if I lack mental capacity?

Mental capacity can be lost for various reasons on both a short- and long-term basis.

Suffering from mental health problems, or being involved in an accident that renders you unconscious, can result in the need for someone to act on your behalf temporarily, while a severe brain injury or being diagnosed with dementia could mean you lose capacity permanently.

The Mental Capacity Act sets out a two-stage test of capacity:

Stage one: Does the person have an impairment of their mind or brain, whether as a result of an illness or external factors such as alcohol or drug use?

Stage two: Does the impairment mean the person is unable to make a specific decision when they need to?

Healthcare professionals work alongside legal professionals, family members, and other caregivers to assess mental capacity.

Who can be appointed as an attorney?

An attorney should be someone you trust. Most people choose a family member or friend, although you can appoint a professional, such as a lawyer or solicitor.

Attorneys must make decisions that are in your best interests.

You can appoint a single attorney or several attorneys. If you appoint more than one attorney, you must specify whether they should act:

  • This means that all attorneys must act together on every decision. If one attorney does not agree with a proposed action, that decision cannot be made.
  • Jointly and severally. This means attorneys can make decisions on their own or with other attorneys.

You can also give instructions that some decisions should be made ‘jointly’ and others ‘jointly and severally’.

When should I make an LPA?

Anyone over the age of 18 with mental capacity can make an LPA.

Making an LPA does not mean it takes effect immediately. Rather, it safeguards your future by acting as an important insurance policy in case you need to use it.

Putting it off can cause untold difficulties for you and your family. If you lose capacity without an LPA in place, your loved ones may have to apply to the Court of Protection to appoint someone to manage your affairs, which will cost time and money.

Conversations about future estate planning, including preparing LPAs, are often difficult. At Muscatt Black Graf, our experienced team will make the process as smooth and stress-free as possible by taking the time to discuss your situation and understand your wishes.

We ensure our clients’ needs are met by providing reassurance and clear and constructive advice.

If you are looking for advice and guidance on Lasting Powers of Attorney and want to discuss your next steps, please email Muscatt Black Graf on contact@muscattblackgraf.com.

How do you make an LPA?

LPA forms are available from the Office of the Public Guardian (OPG). They can be filled in online or printed off and completed, and then signed and witnessed by the relevant people, before being returned to the OPG for registration.

Setting up an LPA can be complicated, and it is easy to make mistakes. Errors can lead to forms being rejected by the OPG or result in an invalid LPA when you try to use it.

An experienced private client solicitor can help. Enlisting the help of an LPA lawyer will ensure the forms are completed properly and can also be part of wider estate planning, providing added security and peace of mind to you and your family.

How much does an LPA cost?

It costs £82 to register an LPA with the OPG, although certain exemptions apply. Additional fees will be incurred if you decide to use a solicitor to assist with your LPA application.

Can you change an LPA?

If you have made and registered an LPA with the OPG and subsequently want to change it, depending on the circumstances, you must either:

  • Revoke it by sending a deed of revocation to the OPG and make a new one.
  • Amend it by submitting a partial deed of revocation to the OPG.

Only donors can amend or revoke their LPA.

Lasting Powers of Attorney Lawyers Marylebone

Our solicitors at Muscatt Black Graf have extensive experience assisting individuals and their families in managing their affairs by providing practical and pragmatic advice on all matters concerning Lasting Powers of Attorney (LPAs).

Muscatt Black Graf’s Lasting Powers of Attorney service includes:

  • Advice on capacity issues.
  • Advice on the appointment of attorneys and their duties.
  • Advice on Enduring Powers of Attorney (EPAs).
  • Preparing the LPA forms.
  • Registering LPAs with the Office of the Public Guardian (OPG).
  • Financial administration.
  • Cancelling an LPA or EPA.
  • Retiring from the position of attorney.

For more information about Muscatt Black Graf’s LPA services, click here.

To speak to one of our specialist LPA lawyers based in Marylebone, London, please email Muscatt Black Graf on contact@muscattblackgraf.com or click here to fill in our online contact form.

This blog was prepared on 13 March 2024. It is not intended to be advice and should not be relied upon as such.

 

 

 

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