Frances Kelly, Senior Partner at Tallents in Newark, explains Lasting Powers of Attorney and how they can help carers manage the financial affairs of the mentally impaired.
We never know what life has in store for us but how many of us think about what will happen to our financial affairs if we are suddenly unable to manage them? If the worst happens and you became mentally incapacitated, temporarily or permanently, then a Lasting Power of Attorney would allow your loved ones to care for you and protect your assets. Says Frances Kelly, a director in a partner company at Tallents in Newark,
A Lasting Power of Attorney (LPA) grants someone the legal power to manage your financial affairs if you become unable to due to accident, illness or disability. Usually people appoint someone they trust, such as a close relative, friend or solicitor as their attorney.
You control and decide who will be your attorney and you can cancel it at any time.
Unlike an Ordinary Power of Attorney an LPA is designed to last once someone has become mentally impaired.
It is a useful document for carers as they can manage the affairs to the best advantage of the person being cared for but it must be drawn up while the ‘donor’ of the LPA is still fully able to understand the implications of the arrangement at the time of it being made.
For the LPA to be valid a ‘certificate provider’ will need to sign a certificate to say that you are aware of the implications and that nobody is pressurising you into making a Lasting Power of Attorney. This is usually someone who has known you for at least two years, or someone with specialist skills in assessing if a person is incapacitated.
The attorney you appoint must be at least 18 years old and must not be bankrupt if appointed to make decisions about a person’s property and money. You can appoint more than one attorney at the same time.
Frances also points out that,
Your attorney cannot start making decisions on your behalf until the Lasting Power of Attorney has been registered by the Office of the Public Guardian, who will make sure your attorney is aware of his or her duty to act in your best interests. The Office of the Public Guardian will charge a fee for registering the lasting LPA.
It’s estimated that only 60,000 people in Britain have registered these ‘advanced directives’ with the authorities, and the problems begin when someone is suddenly, unexpectedly mentally impaired.
This is because if relatives have to manage the affairs of a mentally incapacitated person without an LPA then they must apply to the Court of Protection, who reports to the Office of the Public Guardian (OPG).
This can be a very long drawn out and expensive process and will involve an investigation into whether the relatives are fit to run the mentally impaired person’s affairs.
This is a decision that can be made well in advance of the anticipated need for an LPA. We advise our clients to consider making an LPA as soon as possible, as only if a relative is given power of attorney before a person is mentally incapacitated will they be able to avoid applying to the Court of Protection and the OPG for the right to control their assets later.