Let’s Talk Lasting Powers of Attorney

What happens if you or someone you love loses mental capacity and are no longer able to make decisions about their Property and Financial Affairs or their Health and Welfare? Here at Pepperells, we understand that this can be an extremely distressing time for families and we are here to support you and provide specialist advice to guide you through the process.

If you are concerned about what may happen to your property or finances in the event that you lose mental capacity, you can appoint someone you trust to deal with your affairs by applying to the Office of the Public Guardian to put in a place a Lasting Power of Attorney. The Office of the Public Guardian is an executive body of the Ministry of Justice which oversees private assets and supervises the financial affairs of people who lack mental capacity for making decisions.

There are two different types of Lasting Powers of Attorney; a ‘Lasting Power of Attorney for Property and Financial Affairs’ and a ‘Lasting Power of Attorney for Health and Welfare Decisions’. Each type of Lasting Power of Attorney covers different decisions and you can choose to apply for both or just one of these documents.

The Lasting Power of Attorney for Property and Financial Affairs covers paying your household bills, collecting your income or benefits or even selling your house, if required. The document can be used even if you still have mental capacity to deal with these things yourself but are unable to physically do so, for example if you were living abroad or in hospital.

The Lasting Power of Attorney for Health and Welfare allows your Attorneys to make day-to-day decisions such as where you live, your diet and what clothes you wear, as well as making decisions about any medical treatment you receive which includes life-saving treatment. This type of Lasting Power of Attorney can only be used in the event that you have lost mental capacity. You are able to make decisions about your own health and care until it is proven that you lack the mental capacity to do so and it is only at this point that your Attorneys can step in and make decisions on your behalf.

Lasting Powers of Attorney are not valid for use until they are registered with the Office of the Public Guardian. The Office of the Public Guardian sets out a stringent application process which requires that the documents be signed in a specific manner and a specified order. A failure to do this can result in registration fees being payable more than once.

You can also tailor the documents to your circumstances including specific preferences or instructions to your Attorneys. The Office of the Public Guardian are extremely meticulous and any ambiguity in your instructions may result in the Lasting Power of Attorney being rejected from registration or you may encounter problems when trying to utilise the document in the future which can cause families unnecessary stress. From April 2019 to April 2020, the Office of the Public Guardian rejected nearly 22,000 applications so it is becoming increasingly important to seek professional advice. Our private client team has vast experience in dealing with Lasting Power of Attorney applications and will deal with the onerous application on your behalf, advising you on personal instructions to include in your documents to ensure that you get the support you require.

If your loved one has already lost capacity, for instance if they have severe learning disabilities or following a stroke or diagnosis of dementia, then they may be unable to put a Lasting Power of Attorney in place and could instead be required to apply to the Court of Protection for a Deputyship order which is much more expensive and time consuming than a Lasting Power of Attorney.

You would need to complete a number of lengthy forms as part of the application to the Court of Protection detailing your loved one’s loss of capacity and obtain medical evidence which can make an already difficult time even worse on your loved ones and can sometimes lead to conflict within families. Ultimately, it is the court’s decision as to who is appointed as a Deputy therefore you are unable to choose who is in control of your assets yourself. In addition, if you are appointed as a Deputy for your loved one, you are required to submit annual records of your decisions and there are a number of fees to be paid annually, namely a supervision fee payable to the Office of the Public Guardian and a ‘Security Bond’ which is an insurance policy which protects the value of your loved one’s assets.

It is for these reasons that we advise all of our clients, no matter their age or circumstances, to ensure that they put Lasting Powers of Attorney in place so that their needs are adequately protected.

If you require any further information or would like to meet with one of the Private Client team to discuss your options in further detail, please do not hesitate to contact us.