Time spent during the lockdown has given many of us the chance to think about putting our affairs in order, especially about what will happen should our health fail.
Indeed, our Wills and Probate team have seen an increase in people putting in place Lasting Powers of Attorney (LPAs).
There are two different types of LPA. One of them covers decisions about your property and finances, and the other covers decisions about your health and welfare. You can choose to have one or both.
An LPA allows someone you trust to make decisions on your behalf should you become incapacitated, either mentally or physically, such as the result of an accident.
The person you appoint is called an attorney. You can have more than one attorney who can be anyone you chose, such as family members or close friends. Clearly, they should be people you trust implicitly. Sometimes people appoint a professional adviser, such as a solicitor, who could act as attorney or oversee the activities of your attorneys.
If you are married or in a civil partnership do not assume that your spouse will automatically be able to deal with your finances and make decisions about your healthcare. This is not the case as, without an LPA, they will not have the authority.
You can appoint the same person or persons to be your attorney for both types of LPA or you can choose different attorneys, according to the interests or skills of your attorneys. There is no point in appointing one of your children to be your finance attorney if they are not good at managing their own finances!
The LPA will only be valid if you have the mental capacity to set it up and have not been put under any pressure to create it.
If you do not have an LPA, your family, friends or a social worker may have to initiate court proceedings to be able to deal with your affairs on your behalf. The court will appoint a ‘deputy’ who may not necessarily be someone that you would have chosen yourself and the whole process is much more expensive complicated and time-consuming.
Clients often worry that by making LPAs they will lose control over their own affairs. But having an LPA in place helps you stay in control. You decide who you want to help you and those attorneys must then work with you, taking on the tasks that you are no longer able or do not want to do. They must always act in your best interests and only ‘take over’ if you lose mental capacity.
At Phillips, our meetings with clients are either by phone or by video conferencing such as using Zoom, Microsoft Teams or FaceTime.
We will explain everything in detail during our initial appointment and will guide you through the process, ensuring that everything runs as smoothly as possible.
When it comes to signing your LPA document, digital signatures cannot be used, so your LPA documents must be signed by hand with a black pen and witnesses must have a clear view of the person signing the LPA.
In addition, witnesses must be over 18, have mental capacity and not be an attorney.
Most of our clients have friends or neighbours who are happy to act as witnesses so that you can sign at home. We would urge you to follow social distancing guidance, staying at least two meters away from each other at all times and to wash your hands before and after handling the LPA.
You can ask your witness to witness your signature through a closed window, over a garden fence, over the bins, or even from the doorstep of their home. Signing documents in lockdown has gone creative!
Some elderly clients have found it hard to arrange witnesses and so then we visit clients at home to help with signing and to act as ‘Certificate Provider’ (the person who confirms you have mental capacity at the time of making the LPA). You should not worry that you cannot make an LPA because you cannot think of anyone to act as witness – there will be a way round it!
Once the LPA has been completed, we will arrange for it to be registered at the Office of the Public Guardian (OPG) and provide you with certified copies of the registered document.
We recommend that everybody has an LPA in place as mental capacity can be lost or diminish suddenly, as a result of a serious accident or suffering an illness.
Having an LPA in place can provide some peace of mind for all concerned.
If you would like to discuss drawing up an LPA, please contact Lucy Watson who heads our Wills and Probate team at Phillips Solicitors incorporating Brain Chase Coles.
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This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.