Lasting Powers of Attorney - how to keep control
Lasting Powers of Attorney (LPAs) were introduced in October 2007 and allow a donor to appoint one or more others to manage their finances or health and welfare issues as long as they are mentally capable of doing so.
LPAs have been criticised as they were long and cumbersome and involved a Court fee and these issues put many people off.
The new forms
However, in October 2009 new shorter forms were introduced. They are half the length of the old ones and contain the instructions within the form itself, rather than in a separate booklet.
In addition, since the Court fee has been reduced to £120 for each LPA, they are now a much more attractive proposition for people who want to put their affairs in order. It has also meant that Boyes Turner has been able to reduce the legal fees in preparing such documents, and a no obligation quote can be given on request.
Advantages of using a solicitor
Paperwork: There is still a vast amount of paperwork to deal with, such as the notification forms for up to five persons and the Court registration forms for each type of LPA. A solicitor can take all of the worry away and complete these for you as quickly as possible.
Time: It can still take two to three months to obtain the validated LPA for use from the Office of the Public Guardian. This is partly because of the statutory notification periods which mean that a person notified of registration of an LPA has six weeks to object if they feel that there is a good reason why the LPA should not be registered. Even if a donor chooses not to notify anyone, then the six week statutory period will still apply. This however provides a donor with an extra level of protection against abuse.
Solicitors can help to streamline the process. They are experts at quickly advising on the forms and preventing errors from being made. They can also offer additional advice on restrictions and conditions if need be, how attorneys can act together and may also be able to act as your certificate provider.
What is a certificate provider?
The certificate provider is the person who confirms that you have understood the scope and power of the LPA and have not been pressurised into entering into it. They can be a professional person such as your solicitor or GP, or someone you have known well for over two years. To understand the scope and power of an LPA the donor must have capacity and this is subject and time specific. Thus, they must understand the relevant information, retain the information and use and weigh up the information to arrive at a decision at that particular time and be able to communicate the decision.
It is crucial to try and get an LPA prepared while the donor has sufficient capacity. If there is doubt, then the donor may have to consult a GP which incurs extra time and cost. It is likely that the GP will charge an assessment fee.
The Court of Protection
If the donor does not have mental capacity then an application for deputyship will need to be made to the Court of Protection for someone to manage the donor’s financial affairs.
This is a very bureaucratic process, is time consuming and costly. The Court application fee alone is £400 and there are also additional fees for the appointment of the deputy, as well as supervision fees and insurance, even if you do not use a lawyer.
If you do use a lawyer then you can ask for their fees to be assessed by the Supreme Court Costs Office who will inspect the time that it has taken to complete the application and the rates. All of our professional deputyship fees undergo such assessment and lay deputyship fees if requested. Even so, fees can rise quite rapidly, especially in the first year when the deputy is trying to arrange day to day expenses for the client as well as checking benefits, the tax position and all other financial demands.
A recent article 'Lawyers charged frail Alzheimer's couple £44,400' published inThe Daily Mail, highlighted a case in which the legal fees were very high and confirmed that to avoid this route you should draw up an LPA stating who you want to run your affairs in the event that you are unable to do so yourself.
An LPA saves a lot of paperwork and aggravation later on, and gives you peace of mind knowing that you are appointing a person you trust. It also avoids a person being left in a state of limbo while a Court of Application chugs along at a laborious pace when it is most crucially needed. LPAs are a private alternative to a more public process.
What should you do now?
Forms for LPAs can be downloaded from the Office of the Public Guardian website and likewise forms for deputyship can be down loaded from www.hmcourts-service.gov.uk. However, a specialist lawyer will help you navigate your way through the paperwork, advise you on the application and allow you the time to concentrate on your family member’s welfare. We would always recommend an LPA as the best option but can advise on deputyship if need be.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.