Power of Attorney Services
Lasting Power of Attorney
How much does a Lasting Power of Attorney cost?
There is a fee to register a Power of Attorney. In England and Wales, this is £82, in Scotland, it is £79 and in Northern Ireland £151. There are reduced fees and exemptions for those on certain benefits.
Please be aware that it is £82 each for the Property and Finance LPA and the Health and Welfare LPA, so if you register both, that’s £164.
While it is possible to create your own Lasting Powers of Attorney, this can be complex and there are many things to get wrong that can invalidate your LPA or indeed mean that the choices you make are not well thought through, or guided in a professional way, which is why, we always recommend that you always seek professional help and advice from our experts with this important legal document.
However, we recognise that for some of you, an online solution is preferable and so we distilled as much of our expertise and knowledge as is possible on this subject into an Online Lasting Powers of Attorney Writing Service, as part of our Online Will Writing Service. This will guide you through a step by step process to minimise the risk of error or ill-advised choices and you can also ask us to check the document for you prior to submission.
Redwood Powers of Attorney Services
Need help with LPA?
We would always recommend that you attend one of our free public information Wills, Trusts and Estate Planning Webinars in the first instance. These 45 minute highly informative presentations provide you with a great overview of Estate Planning including Lasting Powers of Attorney and what makes most Wills disastrous!
The different types of Power of Attorney
There are two types of Lasting Power of Attorney: Property and Affairs, and Health and Welfare. A Property and Affairs Lasting Power of Attorney allows elected Attorneys to deal with the financial aspects of the Donor’s Estate, whereas the Health and Welfare Lasting Power of Attorney allows your Attorneys to deal with your health and care decisions.
Both Lasting Powers of Attorney have only been in existence since 1st October 2007 when they replaced the previous version, called Enduring Powers of Attorney (EPA). An EPA created before 1st October 2007 is still valid, but only covers your financial affairs. There are lots of other reasons why despite still being valid you might want to consider changing your EPA to an LPA.
What is a Health and Welfare Lasting Power of Attorney?
A Health and Welfare Lasting Power of Attorney is a legal document drawn up to be used in the event of an individual becoming mentally incapacitated. The document nominates Attorneys to act and make decisions on behalf of the Donor – the person who has created the LPA.
The Attorneys have the power to make decisions on behalf of the Donor about their Health and Personal Welfare, which also includes medical treatment and care.
How is a Health and Welfare LPA different from a Living Will?
A Living Will, which is also known as an Advance Directive, is a written statement allowing someone to express their wishes regarding aspects of their care, such as the refusal of medical treatment. It is a binding legal document; therefore, Medical Professionals must follow the documented instructions.
A Health and Welfare LPA will allow Attorneys to make decisions on a Donor’s behalf, whereas a Living Will is a set of binding instructions directly from the Donor. In some cases, it is possible to use both documents to ensure that wishes are adhered to in the event of loss of capacity.
By nature, a Living Will has a specific focus and set of instructions, most focused around life sustaining treatment. Whereas there are a whole host of other medical and care needs you may encounter in your lifetime, which you would want your Attorney’s to have the flexibility to make choices on your behalf at the time depending on the circumstances.
Talking to your GP, selecting a care home, making a care plan with social services would all be covered under a Health and Welfare LPA.
Why is having a Health and Welfare LPA important?
It is an incredibly sad fact that one person in the UK develops dementia every three minutes.
From the age of 18 we are treated by the law as adults. If you have an accident or illness that suddenly prevents you from having the mental capacity to make your own decisions, control does not automatically pass to your next of kin, as many people mistakenly believe.
Unless you have a Lasting Power of Attorney in place, your loved ones will not be able to act on your behalf and will potentially be prevented from carrying out your wishes about your care and medical treatment?
Should you need care, the local authority could decide which care home you go into, while taking control of your finances to help fund your care fees. Your spouse, partner or family will have no say in the matter, they cannot demand you are moved to a different care home if they are unhappy with the level of care you are receiving. All they can do is request a move.
What is a Property and Affairs LPA and why is it so important?
A Property and Affairs LPA allows elected Attorneys to deal with the property and financial aspects of your estate when you are no longer physically or mentally capable to undertake matters yourself. This can include paying bills or collecting pensions, but is equally as important for the bigger decisions, like selling property or paying Care Fees, maintaining and managing your Investments and making sure you have enough money to provide for your needs during the rest of your life.
Without it, banks, financial institutions, and utilities companies will not speak to your loved ones or allow them any information or control over your assets. Upon being notified that someone has lost mental capacity many financial institutions will freeze your accounts until proof of the LPA and who the Attorneys are is registered with them.
What happens if I do not have an LPA?
If you do not set up an LPA for your financial and health decisions, initially someone from the Court of Protection or Social Services may be appointed to make decisions on your behalf. Your loved ones will then need to apply to the Court of Protection for a Deputyship, to essentially grant the same powers as an LPA, after you have lost mental capacity. This process can take up to a year, cost thousands in court fees and once granted there will continue to be a heavy amount of work, oversight and governance from the Court of Protection over the powers you have been given and the decisions you make on behalf of your loved one.
For these reasons, the cost and time saving alone makes setting up your Lasting Powers of Attorney in advance an obvious choice.
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More Frequently Asked Questions
If your Enduring Power of Attorney was signed and witnessed before 1st October 2007 it will still be valid and can still be used.
It may, however, be in your best interests to replace it with an LPA. When deciding if this could benefit you, there are several differences between EPAs and LPAs that you should consider.
Firstly, an Enduring Power of Attorney only covers your Property and Financial Affairs, whereas two separate LPAs can be created – one for your Property and Finances, and another for your Health and Welfare. This makes them more flexible in how they can be used and more comprehensive in the areas they cover.
When your EPA was created, you could choose to have either one attorney who would make all decisions or multiple attorneys who would all have to act together, something that was not always easy! The problems that this created were rectified by LPAs.
A Lasting Power of Attorney allows you to have replacement attorneys, whereas under an Enduring Power of Attorney, if your attorney became unable to act on your behalf, the EPA would be voided.
A Lasting Power of Attorney also now allows the flexibility to choose to have decisions made jointly and separately, for example in the circumstance that not all your attorneys can be present in a particular situation.
It is also important that your attorney(s) register an Enduring Power of Attorney as soon as you, the donor, lose mental capacity. This can take several months to complete and can lead to people other than your appointed attorneys making decisions on your behalf until the registration has concluded.
With a Lasting Power of Attorney, however, we always recommend that it be registered immediately so that it is ready for use and application for your benefit from the outset, should your physical or mental capacity become impaired.
A Lasting Power of Attorney also puts extra safeguards in place to protect your interests and requires a certificate provider to confirm that you, as the donor, aren’t being pressured to implement the Lasting Power of Attorney or to make certain decisions.
A recent report, conducted by Co-op Legal Services, has found that 79% of respondents over the age of 45-years have not made a Lasting Power of Attorney (LPA) because they do not completely trust their younger relatives to make financial decisions on their behalf when and if they were to lose capacity, with 35% claiming they have no intention of creating a Lasting Power of Attorney at all.
The report also found that 74% of those aged between 65 and 74-years-old have so far failed to make a Lasting Power of Attorney, and worryingly 67% of those over 75-years-old have not made a Lasting Power of Attorney, entrusting their loved ones to make their health and financial decisions when and if they lose capacity.
Overwhelmingly, the older generation feels as though they are unable to trust their younger relatives with their financial decisions as they age.
There is no right or wrong answer to this question, except to say that we will all have to start trusting someone to do look after us and our affairs when we are at our most vulnerable.
The alternatives are doing nothing and allowing the local authorities to decide what is best or appointing a Professional Attorney. Both, we would always strongly recommend against. Rarely, do we find Clients are comfortable with a stranger being court appointed to make decisions and manage their affairs and a professional appointed as your Attorney cannot be removed unless you make a new LPA or through a court order. They will also charge your Estate ongoing fees and charges for their time and services, eroding your family wealth.
At Redwood, we absolutely believe that appointing your most trusted nearest and dearest, be that family or friends, really is the best course of action in the vast majority of cases. We find the concerns and mistrust can be mitigated by including everyone in the conversations from the very outset, so everyone has clarity about your wishes and more importantly their accountabilities for implementing those wishes when required.
A Lasting Power of Attorney appoints people you trust to make decisions for you when you might not be able to, but what happens when things change, as they always seem to?
Of course, we always recommend you have reserve Attorneys ready to step in if your first attorneys are no longer able to act for you, but what if you want different people to act as your Attorneys after you have made the initial appointment?
Unfortunately, there is no way to amend a Lasting Power of Attorney. The process must be started again from scratch, and so the first step is to revoke your current LPA’s and create new Lasting Powers of Attorney.
This process is relatively simple and uses standard wording within a Deed of Revocation. All you need to do is tell us about your old LPAs and we will arrange for you to sign the Deed. Easy!
If your nominated attorneys change their name or address, you must inform the Office of the Public Guardian (OPG) as soon as possible. This is also the case in the unfortunate circumstance if one of your attorneys dies. Changes must be sent either in writing or by email. Look for your reference number, which will begin with PG, on any past correspondence from the Office of the Public Guardian as it will help them to identify you.
If you need to update a name or address you must provide supporting documents, such as an original marriage certificate, showing the new details. If one of the attorneys has died, however, you must send the Office of the Public Guardian a copy of the death certificate, the original Lasting Power of Attorney, all certified copies of the Lasting Power of Attorney as well as an up-to-date return address.
Do not forget that only the Office of the Public Guardian can change a Lasting Power of Attorney, otherwise, it can invalidate the document!
Although Redwood cannot update the Lasting Power of Attorney document, if you need further advice on updating your LPA or if you don’t currently have one and would like some peace of mind over your health and financial affairs, then get in touch and we will be happy to help.
As soon as your Lasting Power of Attorney is signed by you and your chosen Attorney’s and witnessed as required, it will be valid.
However, in order for your Attorney’s to use the Lasting Power of Attorney, it must be registered with the Office of the Public Guardian. This is the government body that oversees and governs Powers of Attorney in England and Wales.
There is a fee (£82 at the time of writing) to register each Lasting Power of Attorney. At Redwood, we believe it is particularly important that you register your LPAs a soon as possible after signing and witnessing.
If you leave them and then something happens to your physical or mental capacity that requires your attorneys to make decisions about your property and financial affairs or your health needs, they will have to wait until your Power of Attorney registrations are completed which can take several weeks. In addition to the time delay, only once you go to register the LPA will you know that is has been correctly drafted, signed and witnessed. If the Office of the Public Guardian find any error in your LPA they may refuse to register it, leaving you in the same situation as if you never had an LPA in place.
Waiting times from mailing to registration confirmation for a Lasting Power of Attorney is in our experience typically 10 – 12 weeks. This can vary seasonally and based on the level of demand the Office of the Public Guardian is experiencing.
In the meantime, there is a risk that a stranger appointed by the authorities could be put in charge of your property and financial affairs, or to make decisions about your health and care if you lack the mental capacity to do this yourself, hence why at Redwood we insist on registering your LPA’s as soon as they are signed.
A General Power of Attorney form allows a relative or friend to legally deal with your financial affairs for specific periods or events.
There may be specific events or periods of time when many of us find we need to give control of financial and legal matters to others, for example if we are leaving the country for an extended period of time.
During the COVID-19 crisis, for example, many people found themselves self-isolating and relying on others to do the things we would normally do ourselves, so we need to give others the power to act on our behalf in certain matters.
A General (or ‘Ordinary’) Power of Attorney form is a legal document that allows this to be done. It could, for example, allow someone to sign cheques and letters for you if you were unable to leave the house.
In England & Wales, it applies only to your property and affairs. You cannot use it to authorise someone to make decisions about your personal health and welfare.
This document does not allow you to grant authority to someone to perform in your role as a Trustee or Executor (i.e. administrator) of someone’s else’s Estate.
The General Power of Attorney form is automatically cancelled if you become incapable of making decisions, this is because if you lose mental capacity the General Power of Attorney falls away and your Lasting Power of Attorney should step in.
If you want to make a Power of Attorney that remains valid if you become mentally incapable, then you should make a Lasting Power of Attorney.
There is no requirement for the General Power of Attorney form to be registered.
For the form to be valid, the ‘Donor’ (the person granting the Power) and the ‘Attorney’ (the person being granted the authority) must be over 18, have the capacity to grant the General Power of Attorney and not be an undischarged or interim bankrupt.
This document also allows you to appoint a replacement Attorney if you so wish.