lasting power of attorney

have you got one yet?

This is possibly the most important legal document that anyone should have in their life time; in fact the Office of the Public Guardian states that everyone over the age of 35 should have one!

why?

You may not think boating is a dangerous pastime – but when you consider the possible dangers that we face daily on the canals and inland waterways, ask yourself this question. If you lose mental capacity temporarily or permanently do you think that you could pay all your bills and ensure that the care you may receive, if unwell for an extended period would be what you want?

When someone (a donor) becomes mentally or physically unable to look after their own affairs, they generally wish someone they know and trust could legally handle these things for them in the way that they would do things for themselves. The only way this can happen is by creating a Lasting Power of Attorney thereby giving another person (an attorney) the legal right to act on behalf of the donor.

It is important to pre-arrange a Lasting Power of Attorney whilst a person/donor still has the
mental capacity to do so and therefore be able to choose their own attorney(s). People often assume (especially a spouse or next or kin) that it is their automatic right to take over the affairs of the incapacitated person. Sadly, this is not the case, even if they have savings or investments in joint names. We also recommend that replacement (or backup) attorneys be appointed in case the chosen attorney cannot act for some reason.

uses of an LPA

For example:

• The donor can still do things for themselves, under the financial power, even after the LPA has been registered.
• A financial LPA can be used if a person needs help on a temporary basis; e.g. in the case of a nervous breakdown.
• A single parent having difficulties and wanting someone to look after a minor (child/children?) on a temporary basis. A note could be made in the LPA document to this effect.
• The attorney must always act in the best interest of the donor at all times and if needed “fight battles” on the donor’s behalf. Otherwise the attorney could be found to be negligent in his/her duties under the MCA 2005 Act.

what happens if there is not a lasting power of attorney in place?

If a person cannot manage their affairs and they have lost mental capacity, the only way for someone to be able to look after that person’s affairs is by way of an application being made to The Court of Protection for a deputy to be appointed. This can take many months to sort out and is costly. To give you an idea of costs LPAs cost approx. £500.00 whereas a Deputyship Order will cost approx. £3000.00. and after that there's an annual fee and other costs to pay as well (depending on circumstances and income of the incapacitated person). A deputy may be someone known to the family or could well be a local Solicitor or an officer of the Local Health Authority. In certain circumstances a family member may be appointed, but there are lot of restrictions and rules to follow and abide by.


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