There has been much focus on Lasting Power of Attorney’s (LPAs) recently, especially as they are important for those who have lost capacity and require people they trust to manage their affairs. There has been less talk about LPAs for businesses which can provide protection for a business owner, providing a safety net should something happen.

Without an LPA in place, the Court of Protection will need to appoint a deputy, which can take time, meaning a business could quickly end up without access to bank accounts or with the ability to make important decisions. It is also expensive for a deputy to be appointed, which can cause further stress to the business.

If a business LPA is in place, the nominated person, the attorney, will be able to temporarily take over the running of the businesses with the ability to deal with important decisions and sign contracts.

Although unlikely to be used, having an LPA in place can ensure that not only is the business kept running, those who rely on the business remaining stable, such as employees and suppliers, will have their roles secured.

An LPA does not mean that the attorney will remain permanently; they are required to “so far as reasonably practicable, permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them.” This means that a business owner will be involved in decision making.

A business LPA is created by completing an LPF1 form, which must be signed by a witness, the chosen attorney and a certificate provider. A certificate provider ensures that the decision has not been made whilst under pressure and that the person awarding the power understands the consequences.

The fee for registering a business LPA is currently £82, small change compared to the potential cost of not having one…

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To speak with one of our specialist Wills & Probate Lawyers, please call us now on 0117 952 0698 or Make A Free Will Enquiry and we will discuss your current circumstances with you and explain all available options available to you.

Although associated mainly with those who are either ill or elderly, a Lasting Power of Attorney , or LPA, can be useful for any person at any stage in their life.  With the current pandemic, it has brought to light the importance of loved ones or those you trust, to be able to manage your affairs if you become unable.

An LPA is a legal documents that allows an appointed person, an attorney, to make important decisions on your behalf.  There are two different LPAs that are available and you can chose to have either one or both, with the same person or different e people appointed as attorneys.

Health and welfare LPA

This form of LPA allows your attorney to make decisions only about your health and welfare.  These could include what treatments you receive, if you should be placed in a care home and even what should happen to pets if you lose mental capacity.  With this LPA, an attorney is only able to act when you no longer have mental capacity.

Property and finance LPA

This form of LPA allows your attorney to make decisions about your finances, such as looking after your bills, selling your property, giving gifts on your behalf.  This LPA can begin as soon as it is registered with the Office of the Public Guardian, however you are able to stipulate that you wish for it to only be used at the point you lose mental capacity.

Having an LPA does not mean that a person could have control over yourself or your finances unchecked.  As you are able to stipulate that an LPA only becomes effective when you have lost mental capacity (which can be only temporary), they will only be able to make decisions at this point.  Even when they are able to act, they are under a duty to act within your best interests, not their own or anyone else’s.

Another way to ensure that your attorney is acting in your best interests is to appoint more than one.  Multiple attorneys can act jointly, which means all decisions need to be made between them, or severally, which means that only one may make a decision.  If you appoint joint attorneys and one becomes unable to act, the whole LPA fails, so it is worth considering which decisions you would prefer having made jointly, as you are able to specify your instructions in the LPA.

LPAs can become complicated, and although the government has an online service, it is recommended that you consult with a solicitor to ensure that you are choosing the right one for your circumstances as well as ensuring your instructions are recorded correctly.

There is a fee for registering an LPA, however this is small in comparison to the court fees should your family and friends need to apply to have decisions made on your behalf.  It can also save time and expense of bills being missed whilst the court application is taking place.  An LPA also means you have chosen those closest to you and most trusted, to make important decisions when you are unable to, rather than the courts or Public Guardian.

Make A Free, No Obligation Enquiry Now

To speak with one of our specialist Lasting Power Of Attorney Lawyers, please call us now on 0117 952 0698 or Make A Free Will Enquiry and we will discuss your current circumstances with you and explain all available options available to you.

The world is currently living through a ‘new normal’ which involves us distancing ourselves from others outside our immediate household.

When we are told to remain two metres apart from each other and only leave home for essential work, shopping or exercise, it becomes difficult to understand how we will fulfil our daily obligations without breaking government guidelines.

For those acting as an attorney or deputy for protected members of society, these services are still crucial and should continue to be carried out if possible.

The Office of the Public Guardian (OPG) has advised all deputies and attorneys in England and Wales to continue acting for their vulnerable or protected person (P).

They further advise that during the coronavirus outbreak, the roles and responsibilities of deputies and attorneys remain the same, even if they are in isolation or shielding themselves.

OPG guidance insists that all decisions can only be made by the appointed individual and if a deputy or attorney intend to retain their role after the outbreak is under control and things return to a level of normality, they must continue their role in the present as well.

What If I Am Impacted By Covid-19?

Attorneys or deputies who have been forced to self-isolate or shield because they have either had Covid-19 or are protecting themselves from it, do not need to give up their role if they are unable to visit the protected person or carry out their tasks in person. Remote working is acceptable in the current circumstances.

If a deputy or attorney feel as though they are unable to complete their duties, the OPG highlight that their role can be permanently disclaimed and a court-appointed alternative can permanently replace the current representative.

However, this is a huge step which will go against the express wishes of the protected person. If you are able to continue, you should.

What if I need to make a Lasting Power of Attorney (LPA) During lockdown?

Many vulnerable people may need additional support during these uncertain times. If you feel as though you need an LPA in the weeks and months ahead, registrations are still being granted.

However, social distancing restrictions will make it more difficult. All LPAs require witnessing; a difficult feat when we are all confined to our homes. The OPG has advised against home visits with all forms being posted to signatories. It also suggests organising neighbours to witness a signature over a garden fence or through a window.

The guidance also looks at other measures that can be taken if an LPA is proving too difficult to obtain or whilst you are waiting for the LPA to be registered. A general power of attorney can be obtained in order for all financial affairs to be considered whilst the protected person still has capacity. Similarly, a third-party mandate will authorise a sponsored person to carry out all transactions on P’s behalf until the LPA is registered.

Make A Free, No Obligation Enquiry Now

To speak with one of our specialist Wills & Probate Lawyers, please call us now on 0117 952 0698 or Make A Free Will Enquiry and we will discuss your current circumstances with you and explain all available options available to you.

Can I make a lasting power of attorney during lockdown?

The UK has been forced to consider what will happen if we become ill and even die over recent weeks. As Covid-19 spread, enquiries for Wills more than doubled and more people were considering what would happen if they lost capacity.

Those looking to secure a lasting power of attorney during the Covid-19 outbreak have increased at a time when the Office of the Public Guardian’s capacity has fallen.

Governmental measures have meant that more people are working remotely, self-isolating or shielding from the virus, meaning fewer employees are available to service the increased demand.

While the country remains in lockdown, the OPG has warned people looking to make an LPA that they could face extended delays beyond the usual eight weeks. Given the legal need to have your document witnessed, the OPG also advised non-urgent applications to defer their application until social distancing restrictions are lifted and their departments are working at full capacity. This will also make the process easier for the protected person (P) and their independent witnesses.

The advice does state that people are still able to apply for LPAs in the current circumstances and has suggested a number of workarounds to ensure the document is legally valid.

Remotely Consult With Your Legal Provider

Your legal provider can consult with you via video conference facilities in order to ensure you have mental capacity to proceed and are not creating the document under undue influence.

The call will also help to establish exactly what you would like to protect whether it be financial support through a Property and Financial affairs LPA or health care decisions through a Health and Welfare LPA.

Witnessing The LPA

An independent witness, who is over the age of 18 and not the attorney or the replacement attorney must witness both the donor and intended attorney sign the document as well as sign it themselves.

This will be a challenging feat when governmental advice suggests people should remain at home and stay at least two metres apart. The OPG advise against inviting people into your home or entering the witness or attorney’s home to sign the document.

It claims that the document could be witnessed through a window, witnessed and signed outside using black ink, or walked round to the various homes and witnessed and signed safely whilst adhering to governmental health advice.

All signatories must also ensure the document is signed in the correct order to avoid having to start the process again. The donor should sign first, followed by the independent witness and then the attorney. All signatures must sign the same single document, using black ink for the LPA to be considered valid.

How Long Will The LPA Registration Take To Process?

In normal life, when the OPG are working at full capacity, an LPA will usually take eight weeks. This includes a compulsory four-week waiting period, created to allow objections and oppositions to be made.

However, the OPG are working at limited capacity and the registration process is likely to take significantly longer. We are living in a time where offices cannot work in their usual ways and whilst it is frustrating, patience and understanding are vital ingredients.

To speak with one of our specialist Lasting Power Of Attorney Lawyers, please call us now on 0117 952 0698 or Make A Free Will Enquiry and we will discuss your current circumstances with you and explain all available options available to you.

A Lasting Power of Attorney is a legal document giving someone of your choosing the authority to make financial or healthcare decisions on your behalf.

In the event that you become unable to manage your own affairs, your attorney will be able to step in and deal with matters for you.

What is a Lasting Power of Attorney (LPA)?

An LPA is a legal document by which you can give one or more attorneys of your choosing the power to make decisions on your behalf and deal with the administration of your affairs.

The document must be executed while you are mentally competent and can be stored until such time as it is needed.

You can make two different types of LPA, one in respect of your financial matters and one in respect of decisions relating to your health and welfare.

A property and financial affairs LPA gives your attorney authorisation to manage your bank accounts, to pay bills, collect your pension and sell your house, although the powers it confers can be limited if you choose.

A health and welfare LPA allows your attorney to make decisions regarding where you will live, what medical treatment you will have and whether you will be given life-sustaining treatment.

When can a Lasting Power of Attorney be used?

A property and financial affairs LPA can be used as soon as it has been registered with the Court of Protection. This allows someone who may struggle physically with going to the bank, for example, to give their attorney the authority to deal with this on their behalf.

It is usually the case that without an LPA, no-one can access a bank account or carry out financial transactions on behalf of someone else. An LPA gives you the flexibility to have an attorney who can step in if needed.

A health and welfare LPA can only be used once the person who has signed it has lost the mental capacity to make their own decisions.

There is a two-stage test to ascertain whether a person has mental capacity:

• Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?
• Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to.

By consulting with a solicitor before making an LPA there is less chance of any problems later on and they will also be able to sign the LPA as a certificate provider, ie. someone who can confirm you have understood the implications of the LPA and you have not been put under any pressure to sign it.

Who should I appoint as my attorney?

You should choose someone you trust implicitly as they will potentially have control over all of your affairs. Your attorney must be aged 18 or over and may not be bankrupt.

You can appoint as many attorneys as you wish. Ideally, you should think about either appointing two attorneys or, if you only have one, then name a replacement in case your first choice is unable to act.

You can select whether your attorneys can act separately or whether they both have to sign documentation to authorise transactions. In reality, it may be easier for them to each have the power to sign individually, but this is something for you to consider in your unique circumstances.

It is often advisable to choose an attorney who is younger than you, as they are more likely to have the ability to deal with what could be extensive administration on your behalf. Someone of your own age may possibly struggle to take on the job when the time comes.

What decisions can my attorney make on my behalf?

In respect of a financial LPA, if you give your attorney general power to act on your behalf, they will be able to do everything that you could have done yourself. This includes opening, closing and operating bank accounts on your behalf, paying bills, investing money and buying or selling property.

You can limit this type of LPA if you choose so that your attorney only has selected powers.

A health and welfare LPA allows your attorney to decide where you will live, how you will spend your time, what day-to-day care you will receive, to include what you will wear and what you will eat, what medical treatment you will be given and who you will see.

You can choose to give your attorney permission to make decisions about whether or not you receive life-sustaining treatment.

What decisions cannot be made by my attorney?

Your attorneys cannot make any decisions on your behalf after your death unless they are appointed as your executor in your Will.

They can make some gifts on your behalf, but only where these are reasonable and in proportion to the size of your estate. The gifts must customary or seasonal, such as birthday or Christmas gifts. Any substantial gift will need the consent of the Court of Protection.

Your attorneys cannot change your Will unless they apply to the Court of Protection to make a statutory Will. They are not allowed to access or view your Will.

They cannot delegate their powers or agree to any restriction on your liberty. They are not able to refuse life-sustaining treatment for you unless you have specifically given them this power.

What will happen if I have not made a Lasting Power of Attorney?

If you lose the mental capacity to make your own decisions, then it could be very difficult for your family to deal with your affairs. Next of kin do not have the right to operate your bank account, unless they are a joint account holder with you, and they will not be able to access your funds to pay bills or be able to make any decisions about how to care for you or manage your finances.

An application will need to be made to the Court of Protection for someone to be appointed as your deputy. This is substantially more expensive than putting an LPA in place and can be a lengthy procedure. While they are waiting for the Court to process the application, they will not officially be able to help you.

Being a deputy also involves ongoing expenses as the Court of Protection will require annual reports of the deputy’s activities, to include details of the amounts spent on your behalf.

There is also a risk that the person appointed as your deputy will not be the person you would have chosen yourself.

Contact us

Putting an LPA in place will give you the peace of mind of knowing that your chosen attorney(s) can step in and help you without difficulty if and when you need them.

At Elm Legal Services our Wills and Trusts experts can discuss your situation with you and draw up an LPA on your behalf. We can answer any questions you may have about putting an attorney in place and ensure that you fully understand the role that they will take on and that you are happy with your choices.

If you would like to speak to one of our specialist Wills and Probate lawyers, call us now on 0117 952 0698 or Contact Us and we will be happy to explain the options available to you without obligation.