It is well-documented that people are now living longer. However, many people are understandably concerned about what may happen to them later in life if they become unable to make decisions for themselves.
Powers of Attorney
A power of attorney is a document that allows a person (the 'donor') to appoint one or more trusted individuals (the 'attorney') to make decisions on their behalf.
There are a number of different types of power of attorney:
Powers of Attorney
A power of attorney is a document that allows a person (the 'donor') to appoint one or more trusted individuals (the 'attorney') to make decisions on their behalf.
There are a number of different types of power of attorney:
• Enduring Power of Attorney (EPA)
• Financial & Property Affairs Lasting Power of Attorney (LPA)
• Health & Welfare Lasting Power of Attorney (LPA)
• General Power of Attorney
• Financial & Property Affairs Lasting Power of Attorney (LPA)
• Health & Welfare Lasting Power of Attorney (LPA)
• General Power of Attorney
Enduring powers of attorney (EPAs)
An EPA is a type of power of attorney that could be made prior to 2007. It allowed a donor to appoint attorneys to assist with their property and financial affairs. EPAs could not authorise anyone to act in relation to health and welfare matters.
Although it is not possible to prepare new EPAs, existing documents are still valid (provided they were executed correctly).
EPAs do not have to be registered with the Office of the Public Guardian until such time as the donor has lost or is beginning to lose mental capacity. However, organisations do have a discretion over whether or not to accept an unregistered EPA.
If you have an existing EPA and would like to check that it has been executed correctly please get in touch and arrange a free review meeting.
If you are an attorney that feels the time has come to register the EPA, we offer a fixed fee of £250.00 plus VAT to deal with the registration on your behalf. In addition, the Office of the Public Guardian charge a fee of £110.00, but as an inclusive part of our service we will assess the donor's eligibility for a fee exemption or remission and if applicable deal with that application for you as well.
Lasting powers of attorney
By setting up a Lasting Power of Attorney (LPA) in advance the donor gives the attorney the legal right to deal with his or her affairs, even if the donor later becomes incapacitated. An attorney must always act in accordance with the terms of the Mental Capacity Act, and most importantly must always act in the donor's best interests.
The property and financial affairs LPA enables attorneys to deal with day-to-day finances, manage investments, pay bills and essentially anything that a donor could have done for themselves (subject to any restrictions imposed by the donor). It is often assumed that a relative could deal with these matters anyway, however due to date protection rules organisations will only correspond with you or a person with legal authority to act on your behalf.
The health and welfare LPA enables attorneys to make decisions regarding care and treatment, and can also give attorneys the authority to give or refuse consent to life sustaining treatment.
Our fees
When assisting with LPAs we offer package prices to cover all of the following:
- Advising the donor on what an LPA is and the procedure involved;
- Completion of the LPA;
- Acting as independent certificate provider;
- Acting as independent witness;
- Writing to the chosen attorneys sending the document they must sign to confirm they are happy to act, and explaining what is involved in being appointed as an attorney;
- Completion of registration forms;
- Assessing eligibility for an exemption or remission of the OPG application fee, and if applicable completing the application;
- Storing the original document for your lifetime and providing certified copies for you to use.
For an individual:
One LPA (either type) - £500.00 plus VAT and the OPG registration fee
Two LPAs - £550.00 plus VAT and the OPG registration fees
For a couple:
Two LPAs - £750.00 plus VAT and the OPG registration fees
Four LPAs - £850.00 plus VAT and the OPG registration fees
General powers of attorney
A general power of attorney can only be used whilst the donor retains mental capacity. These can be useful for a variety of reasons, for example if you are travelling abroad for a length of time and need someone to finalise the sale or purchase of a property or to deal with a specific issue before you return.
Whether you need a power of attorney created, reviewed or registered we can assist you. We can also provide guidance to people appointed as attorneys and are not sure about their responsibilities. See our guide to Frequently Asked Questions on Powers of Attorney for further information or call 01992 422128 to speak to our private client team.
Court of Protection
If someone lacks sufficient mental capacity to manage their own affairs or make their own decisions then it may be necessary to make an application to the Court of Protection. for more information about the Court please see our Frequently Asked Questions about the Court of Protection guide.
Deputy orders
If someone you care for lacks sufficient mental capacity to prepare a power of attorney then in order to assist them with their affairs you can make an application to the Court of Protection for a 'deputy order'. A deputy order can authorise you to control that person's money including paying their bills, doing their shopping, managing their investments and paying any care fees amongst other things. A deputy must always act in the best interests of the person whose finances they are controlling and comply with the specific terms of the Order granting them authority. A deputy can be a friend or family member, or a professional such as a solicitor.
Although emergency applications can be made when needed, it often takes approximately 4-6 months to finalise an application for a deputy order. The Court must be supplied with details of the person's personal situation (for example, their relatives, who visits them, where they live and their assets and liabilities) and they will not consider an application without medical evidence confirming that the person involved lacks sufficient capacity to make their own decisions.
Quite often applications to the Court are finalised without the need for a formal hearing, with most matters resolved by witness statements and additional evidence where necessary.
Statutory wills
If someone lacks sufficient mental capacity to manage their own affairs it is likely that they may also lack the necessary capacity to make or update their will.
If you know that the person's will is out of date and that the terms are no longer what they would wish to happen with their estate (for example if the will leaves the estate to a partner they are no longer in a relationship with) or that they do not have a will at all and that distribution under the intestacy rules would not be in line with what the person would have wanted, or would not be a fair outcome for all concerned parties, then it is possible to apply to the Court of Protection for a statutory will.
We can advise you on the merits and appropriateness of any potential application to the Court of Protection so that you do not waste time or incur unnecessary costs for an application that is unlikely to succeed. We will review the details of any previous wills or draft wills made by the person, the person's family tree and details of other people who have close relationships with them, together with evidence of why each proposed beneficiary should be considered. All of these details are also required by the Court in due course if an application is made.
It is likely that the Court will appoint the Official Solicitor to advise and act on the incapacitated person's behalf, and we can assist by corresponding and working with the Official Solicitor to reach an agreement on the terms of any proposed draft will. This helps to ensure that the matter can proceed without the need of a contested hearing.
Our fees
We assist with any Court of Protection matters on a 'time spent' basis. We charge £160.00 plus VAT per hour and will always try and give you an estimate of what our total fees will be as this will be dependent on the specific situation.
Deputy orders
If someone you care for lacks sufficient mental capacity to prepare a power of attorney then in order to assist them with their affairs you can make an application to the Court of Protection for a 'deputy order'. A deputy order can authorise you to control that person's money including paying their bills, doing their shopping, managing their investments and paying any care fees amongst other things. A deputy must always act in the best interests of the person whose finances they are controlling and comply with the specific terms of the Order granting them authority. A deputy can be a friend or family member, or a professional such as a solicitor.
Although emergency applications can be made when needed, it often takes approximately 4-6 months to finalise an application for a deputy order. The Court must be supplied with details of the person's personal situation (for example, their relatives, who visits them, where they live and their assets and liabilities) and they will not consider an application without medical evidence confirming that the person involved lacks sufficient capacity to make their own decisions.
Quite often applications to the Court are finalised without the need for a formal hearing, with most matters resolved by witness statements and additional evidence where necessary.
Statutory wills
If someone lacks sufficient mental capacity to manage their own affairs it is likely that they may also lack the necessary capacity to make or update their will.
If you know that the person's will is out of date and that the terms are no longer what they would wish to happen with their estate (for example if the will leaves the estate to a partner they are no longer in a relationship with) or that they do not have a will at all and that distribution under the intestacy rules would not be in line with what the person would have wanted, or would not be a fair outcome for all concerned parties, then it is possible to apply to the Court of Protection for a statutory will.
We can advise you on the merits and appropriateness of any potential application to the Court of Protection so that you do not waste time or incur unnecessary costs for an application that is unlikely to succeed. We will review the details of any previous wills or draft wills made by the person, the person's family tree and details of other people who have close relationships with them, together with evidence of why each proposed beneficiary should be considered. All of these details are also required by the Court in due course if an application is made.
It is likely that the Court will appoint the Official Solicitor to advise and act on the incapacitated person's behalf, and we can assist by corresponding and working with the Official Solicitor to reach an agreement on the terms of any proposed draft will. This helps to ensure that the matter can proceed without the need of a contested hearing.
Our fees
We assist with any Court of Protection matters on a 'time spent' basis. We charge £160.00 plus VAT per hour and will always try and give you an estimate of what our total fees will be as this will be dependent on the specific situation.
Both solicitors in our private client team are members of Solicitors for the Elderly, and specialise in assisting vulnerable clients. You can read more about Sharon and Chris here.
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