A Power of Attorney is a legal document that gives one person the power to act for another person. It can be used to prepare for the future if your ability to manage your own affairs is decreasing. A solicitor can help to make your wishes to the future known.

 

Please be advised that in UK law, a Commissioner for Oaths is a person appointed by the Lord Chancellor with power to administer oaths or take affidavits. All practising solicitors have these powers but must not use them in proceedings in which they are acting for any parties or in which they have an interest.

 

A solicitor can help by encouraging you to get your affairs in order and make your wishes for the future known. This may involve anything from writing a will to choosing someone to take power of attorney (legal authority to act for you) over your financial affairs, if this is necessary.

 

This can lighten the burden on relatives or carers who might otherwise find it difficult to make complicated decisions on your behalf.

 

Where there is not enough time to take these precautionary steps, or if a person is already incapacitated, it is usually the person’s relatives who need advice.

 

In these circumstances there are several options available. One of these options is to contact the Court of Protection, which can decide for managing the person’s financial affairs.

 

Different types of power of attorney:

 

Ordinary power of attorney: This covers decisions about your financial affairs and is valid while you have mental capacity. It is suitable if you need cover for a temporary period or if you find it hard to get out, or you want someone to act for you.

Lasting power of attorney (LPA): An LPA covers decisions about your financial affairs, or your health and care. It comes into effect if you lose mental capacity, or if you no longer want to make decisions for yourself. You will set up an LPA if you want to make sure you are covered in the future.

 

Enduring power of attorney (EPA): EPAs were replaced by LPAs in October 2007. However, if made and signed an EPA before 1 October 2007, it should still be valid. An EPA covers decisions about your property and financial affairs, and it comes into effect if you lose mental capacity, or if you want someone to act on your behalf.

 

Solicitors will need to know:

 

Solicitors at Lawsmith will need to know:

 

• Whether or not you have made a will;

• Who you would choose to handle your affairs, if this is necessary;

• What assets or income you have;

• Any special wishes about how you want your property or assets to be handled; and

• Whether you have a particular medical condition (if so, they will need permission to speak to your doctor)

If you are getting advice on behalf of an older person, the solicitor will first need to confirm with the older person that they want to instruct the solicitor and get the appropriate information.

 

Once the solicitor has had a chance to consider the information, they can explain your options to you.

 

Other Financial Matters:

 

A solicitor can advise on a wide range of other legal matters affecting elderly people. For example:

 

• Equity-release schemes, where you can unlock some of the capital tied up in your home;

• Funding arrangements for long-term care;

• Estate planning by making a will or lifetime gifts; or

• Where you suspect that an elderly person may be the victim of financial abuse

 

Procedure:

 

Choose your attorney:

 

Attorney needs to be 18 or over. They could be:

• A relative

• A friend

• A professional, for example a solicitor

• Your husband, wife or partner

 

You must appoint someone who has the mental capacity to make their own decisions and how well they look after their own affairs, how well you know them, if you trust them to make decisions in your best interests and how happy they will be to make decisions for you.

When you make your LPA you can choose to nominate other people to replace your attorney or attorneys if at some point they cannot act on your behalf anymore.

 

Make a lasting power of attorney:

 

Either online or using paper forms and it must include the attorneys’ and witnesses’ signatures.

 

It takes up to 20 weeks to make an LPA. Usually quicker if you make it and pay online.

 

Register a lasting power of attorney:

 

When made, you need to register it with the Office of the Public Guardian (OPG).

Before registering, send a form to notify people (LP3) to all the ‘people to notify’ (also called people to be told’) you listed in the LPA.

 

They will have 3 weeks to raise any concerns with OPG.

 

You should apply to register as soon as the forms have been sent to notify people, and in order to register you will need to sign your completed LPA form and send it to OPG.

 

It costs £82 to register each LPA unless you receive an exemption or reduction. Therefore, it costs £164 to register both a property and financial affairs LPA and a health and welfare LPA.

 

You can pay by credit or debit card, or cheque payable to ‘Office of the Public Guardian’ and write your name on the back. Send it to OPG with your forms.

 

If you make a mistake, OPG may let you correct it and apply again within 3 months for £41.

 

Get a reduction or exemption:

 

To qualify for a reduction, you need to earn less than £12,000. You may also qualify if you are on certain benefits such as Income Support.

 

Certifying a copy of a lasting power of attorney:

 

You can confirm that a copy of your lasting power of attorney is genuine by ‘certifying’ it if you’re still able to make your own decisions.

 

You or your attorney or solicitor or a person authorised to carry out notarial activities can use a certified copy to register your LPA if you do not have the original form.

 

They can also use the certified copy to prove they have permission to make decisions on your behalf, such as your bank account.

 

Changes you need to report:

 

If you still have the mental capacity, you or one of you attorney must tell the Office of the Public Guardian (OPG) if you or an attorney change name or address, or an attorney dies.

If there is a change of name, OPG must be notified and a copy of the marriage certificate or deed poll that shows the new name must be sent. Ensure that you do not send any original documents.

 

You must tell OPG if you or your attorney changes address, however supporting documents are not needed.

 

If one of your attorney dies, OPG must be notified and the original LPA and all certified copies must be sent. While, if an attorney dies outside of the United Kingdom, you must also send a copy of the death certificate.

 

What happens to the existing LPA:

 

OPG will cancel the LPA if the donor dies, or if an attorney dies and either the attorneys had to make all decisions jointly or there was only one attorney.

 

The cancelled LPA will be destroyed. However if you want it back then there must be a note included asking for its return along with a return address.

 

If an attorney dies and the attorneys were able to make any decisions jointly and severally, the OPG will update the LPA instead of destroying it. But there must be a return address when you send the LPA.

 

Removing an attorney

 

To remove an attorney if your lasting power of attorney is registered and you still have mental capacity to make decisions you will need to send OPG a written statement called a ‘partial deed of revocation’.

 

End your lasting power of attorney:

 

You can end it yourself if you have the mental capacity to make that decision. In order to do so you will need to send the Office of the Public Guardian (OPG) both the original LPA and a written statement called a ‘deed of revocation’.

 

A power of attorney can also end if your attorney:

 

• Loses mental capacity to make decisions

• Divorces you or ends civil partnership if they are your spouse or partner

• Becomes bankrupt or they are subject to a Debt Relief Order (DRO) – if they are a property and financial affairs attorney

• Is removed by the Court of Protection

• Dies

 

If your only attorney dies:

 

Your LPA will end if you do not have a replacement attorney(s). You must inform the Office of the Public Guardian and send them:

 

• The original LPA

• All certified copies of the LPA

• A return address where your documents can be sent back to

Your LPA can continue if:

 

• There are other attorneys who can act ‘jointly and severally’ but not if they are only allowed to act ‘jointly’.

• There are replacement attorneys.

 

If you die:

 

Your LPA will automatically end. Your affairs will be looked after by your executors or personal representatives from that point, not your attorney.

 

Costs:

 

It will cost £82 to register an LPA unless you get reduction or exemption. You can cancel your LPA if you no longer need it or want to make a new one.

 

Getting help:

 

Solicitors at Lawsmith Solicitors have extensive experience in handling matters relating to a Power of Attorney. To discuss about this with one of our Solicitors, please contact us on 01279 312185 or submit our enquiry form given below.