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Considering Applying for a Power of Attorney?

Lasting Power of Attorney – Property and Affairs

A lasting power of attorney is a legal document that lets you (the ‘donor’) appoint people (known as ‘attorneys’) to make decisions on your behalf about your property and financial affairs or for your welfare. It could be used if you became unable to make your own decisions. Lasting Powers of Attorney (LPA) superseded Enduring Powers of Attorney (EPA) in October 2007 and were brought in because of concerns about possible abuse and a failure to require central registration before use.

Lasting powers of attorney were made far more comprehensive, but this in turn has resulted in greater complexity, and the standard form now runs to 11 pages. An error in the form, or a failure to sign the power of attorney in the correct order, could result in the application being rejected. The number of cases now reported by the Court of Protection in respect of ineffective LPA` show that the procedure it is not as easy as the Government had hoped.

Things to consider:
• At least one attorney needs to be appointed (the person you appoint to make decisions for you) they must be 18, trustworthy and have the appropriate skills to make decisions for you
• You will need to consider appointing a replacement attorney (should the attorney be unwilling or unable to act)
• A certificate provider is required to confirm that you understand what you are signing and agreeing to and have not been put under any undue pressure
• What restrictions  and guidance do you want to include
• You can notify upto 5 people (family and friends) that the LPA is being registered. These interested parties have the right to object and raise concerns on your behalf
• If you have no interested parties then a second certificate provider will be required
• When would you like the attorneys to act for you? Immediately or only when mental capacity is lost?
• You will need someone to witness your signature on the application form
Common Problem Areas:
• You need to have the mental capacity to make the LPA at the time of signing the application
• Restrictions/guidance to attorneys
o An attorney does not have a general  power to  make gifts other than for customary occasions (i.e. birthdays and Christmas), so you cannot request your attorneys to make other monetary gifts or payments for funding (i.e. continue to pay £1000 per month to my son)
• An attorney must be 18 at the date the LPA is signed, you cannot appoint an attorney ‘when he reaches 18’ and they themselves must have mental capacity
• How attorneys may act. The main problem area is around two attorneys acting ‘jointly’. If they are to act jointly then they must act ‘as one’, difficulties arise when they cannot agree and careful consideration of who you appoint is paramount
• Understanding the difference between attorneys acting ‘jointly and severally’ and ‘jointly’ or ‘jointly for some and jointly and severally for others’
• Appointing a replacement attorney: confusion arises constantly over when and how they can act
• An LPA can only operate whilst the donor is alive

Remember if you complete the LPA application form incorrectly the Office of the Public Guardian will return it to you and you will have to start the process all over again! Rutherfords LLP  has a specialist private client department that can assist you with making and registering your Lasting Power of Attorney.
If you are unsure if a Power of Attorney is needed or appropriate please call for an appointment with Tony Illsley, Solicitor and Head of the Private Client Department on 01827 301142 or Sarah Hassall, Private Client Paralegal on 01827 311411 for more details.

We will be happy to advise you and prepare:
• Ordinary Powers of Attorney
• Lasting Powers of Attorney for Property and affairs or Personal Welfare
• Registering enduring powers of attorney with the Public Guardian
• Applications to the Court of Protection to appoint deputies

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