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Essential peace of mind for you and your loved ones on Lasting Powers of Attorney and the Court of Protection
When you are unable to manage your affairs or make decisions for yourself, it gives peace of mind to know that you have appointed someone to do this for you. A power of attorney is a legal document that gives an individual(s) (your attorney) the authority to make certain decisions on your behalf in respect of you finances or your welfare.
Types of Lasting Powers of Attorney (LPAs)
There are two types of LPAs:
- A property and financial affairs LPA, which allows your attorney to deal with your property and finances, as you specify. This includes dealing with banks, pensions and even selling property
- A health and welfare LPA, which allows your attorney to make health and welfare decisions on your behalf, but only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life-sustaining treatment
With both powers of attorney, they must be registered before they can be used.
For many years, our team have been carefully and sensitively managing affairs for elderly clients, many of whom suffer with dementia. If you do not have a family member or close friend do not let this put you off from making a power of attorney, as we can also help with this.
It is often an ideal opportunity to consider Lasting Powers of Attorney at the same time as making or reviewing your Will.
Existing Enduring Powers of Attorney
Any enduring power, validly made before 1 October 2007, can still be used but only in respect of your property and financial affairs. If you wish to give authority over your health or welfare, you will need to make a health and welfare LPA.
If you are appointed as an attorney under an Enduring Power of Attorney, it may become necessary to register this with the Office of the Public Guardian.
We have a team experienced in guiding clients through the process of making and registering powers of attorney. They will ensure that the Lasting power of Attorney is right for your particular circumstances and deal with the Office of the Public Guardian to register them.
What happens if you have not made an LPA or EPA and you lack capacity?
For those unfortunate to lose capacity without a Power of Attorney, it will be necessary for a Deputy to be appointed by the Court of Protection.
We are experienced in dealing with the Court of Protection to assist with the preparation of the applications to have a loved one or friend to be appointed as a deputy. Once the order comes through our support does not have to end there. We are able to support lay deputies in their role, ensuring that the legal requirements of the Mental Capacity Act 2005 and the Code of Conduct are followed correctly.
Benefits of using an LPA to appoint an attorney
- Choice: the majority of people appoint other family members as their attorneys - people who know you well and are more likely to respect your preferences and best interests.
- Flexibility: unlike a deputyship, an LPA can assign a role to your attorney even without a loss of mental capacity. For example, they could be authorised to deal with your bank if you became physically unable to get to the branch for a while.
- Control: an LPA can be planned in advance at your own pace, avoiding the last-minute urgency of the Court.
- Cost: the appointment of deputies is likely to be significantly more expensive than drawing up an LPA. In some cases, two applications to the Court may be required, doubling the cost.
- Speed: an LPA can be completed and registered in advance and is ready to use immediately in an unexpected situation, for example if you have a stroke. It can also be registered in advance with organisations such as banks. With a deputyship application, it is not uncommon for it to take 6 months or more to give the deputy authority to act.
- Scope: A “health and welfare” deputy appointed by the Court of Protection cannot give or refuse consent to life-sustaining treatment for you, unlike an attorney appointed by LPA. If you were seriously ill, your wishes regarding life-sustaining treatment might not be respected.
FAQs
FAQs Benefits of using an LPA to appoint an attorney
- Choice: the majority of people appoint other family members as their attorneys - people who know you well and are more likely to respect your preferences and best interests.
- Flexibility: unlike a deputyship, an LPA can assign a role to your attorney even without a loss of mental capacity. For example, they could be authorized to deal with your bank if you became physically unable to get to the branch for a while.
- Control: an LPA can be planned in advance at your own pace, avoiding the last-minute urgency of the Court.
- Cost: the appointment of deputies is likely to be significantly more expensive than drawing up an LPA. In some cases, two applications to the Court may be required, doubling the cost.
- Speed: an LPA can be completed and registered in advance and is ready to use immediately in an unexpected situation, for example if you have a stroke. It can also be registered in advance with organizations such as banks. With a deputyship application, it is not uncommon for it to take 6 months or more to give the deputy authority to act.
- Scope: A “health and welfare” deputy appointed by the Court of Protection cannot give or refuse consent to life-sustaining treatment for you, unlike an attorney appointed by LPA. If you were seriously ill, your wishes regarding life-sustaining treatment might not be respected.
Explore Battens' services for wills, trusts, probate and estate administration.
FAQs Wills, LPAs and Tax
Q1. Do I need a Lasting Power of Attorney?
This can be answered in the same way as we treat travel insurance. Hopefully you will not need a Lasting Power of Attorney but if you do, your attorneys will be relieved to see that you have it in place as it will save both time and money. A Lasting Power of Attorney (LPA) appoints people (known as Attorneys) to look after your affairs if for any reason you are unable to do so. There are two types of LPA. One allows your Attorneys to deal with your property and financial affairs and the other enables your Attorneys to make decision about your health and welfare. Please note that some nursing homes insist on future residents having LPAs so that they know someone can act if the resident has lost or loses the capacity to act for themselves. Please arrange an appointment to discuss this further with us.
Q2. Can I alter my Enduring Power of Attorney?
No. An Enduring Power of Attorney (EPA) is still valid but it cannot be altered. If you wish to change your attorney/s you need to make a lasting Power of Attorney. Please note that EPAs only cover your property and financial affairs. Therefore, it is worth considering making a Lasting Power to cover your welfare needs. Please arrange an appointment to discuss this further with us.
Q3. Can my Attorneys continue to pay invoices from my estate when I die?
The people you appoint to be your Attorneys under a Lasting Power of Attorney or Enduring Power of Attorney will cease to be your Attorney immediately upon death. The administration of your estate will be dealt with by the Executors that you appoint in your Will. If you are not sure of what you can and can’t do as an attorney, please arrange an appointment to discuss this further with us.
Q4. Is my Will valid even if I have separated from my spouse or civil partner?
Yes. A separation does not make your Will invalid. You should alter it as soon as possible (if you do not wish your spouse or partner to benefit). When you get divorced or your civil partnership has been dissolved, your Will will still be valid but read as if your ex-spouse or civil partner had pre-deceased you. Please arrange an appointment to discuss this further with us.
Q5 .Do I need to change my Will if I get married?
Your Will will be revoked upon marriage unless it has been made in anticipation of that marriage. Please arrange an appointment with us to discuss what your Will says or needs to say.
Q6. Can the beneficiaries in my Will also be my Executors?
Yes. However, your beneficiaries should not witness your Will. If you are not sure who can act as your witnesses, please arrange an appointment for us to advise you.
Q7. When do I have to pay inheritance tax?
The Nil Rate Band (NRB) is the basic allowance available to an individual before any inheritance tax becomes payable. The NRB is currently £325,000. The value is made up of gifts over and above the allowed allowances for the previous seven years before death and also the value of your estate when you pass away.
Q8. What is the Residence Nil Rate Band?
The Residence Nil Rate Band (RNRB) is an allowance available in addition to the Nil Rate Band and came into effect from April 2017. To apply the RNRB, your property must pass to your lineal descendants (children, grandchildren etc..). The allowance started at £100,000 for 2016 / 2017 and will increase by £25,000 each tax year until 2020 when it will be a maximum of £175,000. Together with the Nil Rate Band (currently £325,000), this will give an individual an allowance free from inheritance tax of up to £500,000, by 2020/2021.
Q9. How much is inheritance tax?
Inheritance Tax is charged at 40% for anything over the inheritance tax allowance.
Q10. Will you store my Will?
Yes. We will store your Wills free of charge. We also store deeds free of charge for existing clients.
Q11. Do common law wives and husbands really exist in law?
In short, no. The law does not automatically recognise couples who have lived together as if married or civil partners. This means that if you do not have a Will the intestacy rules do not distribute any part of your estate to your partner. There is an opportunity to make a claim under the Independent (Provision for Family and Dependants) Act 1975 if you have lived together for more than two years.
Explore Battens' services for wills, trusts, probate and estate administration.
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