Winterborne Legal Services

WHY HAVE A LASTING POWER OF ATTORNEY?

Because it’s not possible to predict with certainty what our future will bring. Many of us will continue to be able to cope alone or with a minimum amount of help. Others may need more help and support, and some will take a trusted person to take over making decisions for them.

You can choose the person you trust to:

access to money in your bank accounts and pay your bills;
access to your investments and make different investments for you;
sell your home and invest the sale proceeds

You may be concerned about giving that much power to another person, even if that person is one of your children.

But if you do not give anybody written authority to act on your behalf and it becomes necessary for somebody to take over dealing with your money, a family member will need to ask the Court to be appointed as your Deputy. This Deputy would not necessarily be the person you would have chosen to help you.

Every year there are reports in the newspapers about people who have abused the power given to them and gone on a spending spree with somebody else’s money. Should you be concerned about giving control to your children?

Lasting Power of Attorney can be very useful if your family needs to help you manage your money or take over if you are unable to make any decisions yourself.

We can help you put suitable protection in place in your Lasting Power of Attorney so that you can be comfortable giving power to your children.

Why is it called a ‘Lasting’ Power of Attorney? Because the authority you have given will last, even if you lose the ability to make your own decisions.

You can create a Lasting Power of Attorney that either:

• Deals with your money, property, and financial decisions – this is the Property and Financial Affairs Lasting Power of Attorney; and
• Allows your chosen person to make medical and welfare decisions for you – this is the Health and Welfare Lasting Power of Attorney.

With only 22% of the UK having an LPA, we must be aware of the risks of not having important legal protection like this in place. Watch this video about the risks of not having an LPA.

DO YOU NEED SEPARATE ATTORNEYS FOR THE TWO TYPES OF LPA?

No. You can choose to give authority to your chosen person to make both types of decision. In this case you will need to create two Lasting Powers of Attorney, because the authority given in each Lasting Power of Attorney is specific and there is no overlap.

We understand that making a Lasting Power of Attorney can be a big leap of faith for you. If you have any questions, please get in touch.

HAVE YOU THOUGHT ABOUT WHAT COULD HAPPEN IF YOU DON’T HAVE A LASTING POWER OF ATTORNEY IN PLACE?

Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection regulations.

Research by Solicitors for the Elderly shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to make our own decisions. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place.

Whilst there’s been a rise in the number of enquiries made about Lasting Powers of Attorney (LPAs) during the pandemic, only 22% of people in the UK actually have one.

To avoid the difficult legal situation which Kate Garraway has faced, it’s important to use a specialist lawyer who is experienced in this area of the law, and is trained to support people making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential that you get your legal documents right.

‘I thought that the process would be expensive and difficult for my parents to understand. But the charges were very reasonable and the details explained to my parents very well. I would recommend this accessible, local and friendly service without hesitation.’ Mr NS – Portland.

‘Thank you for your very friendly advice. We always felt able to contact you with any queries.’ Mr and Mrs G – Newbury.

Latest News:

This week, the government launched a 12-week consultation into the modernisation of Lasting Powers of Attorney (LPA’s). The consultation aims to examine the process of creating and registering an LPA, with a view to modernise this with a new digital system.

Modernising the process could offer a more simplified and user-friendly platform. It could also make creating an LPA more affordable and encourage more people to consider making one. However, simplifying the process also carries greater risks, including making mistakes in your application, abuse of power and fraud.

Digitalisation is happening worldwide and offers a fantastic opportunity to improve many legal services, but a fully digitalised platform could mean more older and vulnerable people being targeted for fraud, coerced or abused. The new system must offer appropriate safeguarding measures to ensure people are protected when making life changing decisions.

We will be able to ensure that your LPA is well drafted, clearly setting out what you want and will be approved.

WHAT’S THE DIFFERENCE BETWEEN AN ADVANCE DECISION AND A HEALTH AND WELFARE LASTING POWER OF ATTORNEY?

Advance Decisions and health and welfare Lasting Powers of Attorney (we’ll call them ‘LPAs’ in the rest of this article) are both formal documents you can create which relate to medical decisions.

Despite this similarity, an Advance Decision and a health and welfare LPA are very different documents.

AN ADVANCE DECISION
An Advance Decision is made whilst you are capable of making your own decisions, but is intended to be used in the future if your ability to make your own decisions has been lost. Advance Decisions are used to refuse life-sustaining treatment.

In your Advance Decision, you are able to specify the circumstances under which you would want to refuse medical treatment and life-sustaining treatment. This makes it very inflexible.

Treatment should not be given to you in contravention of your valid refusal

Read more about Advance Decisions here

A HEALTH AND WELFARE LPA
Contrast this with a health and welfare LPA, which allows your chosen Attorney to give or refuse consent to medical treatment and life-sustaining treatment. You don’t need to decide now which treatments you may or may not find acceptable in the future. Your Attorneys will be able to make decisions in your best interests, based on up to date information and diagnoses of outcome.

Medical research and treatments are progressing rapidly – would you want to be unable to receive suitable treatment based on an outdated document?

WHO CAN BE YOUR ATTORNEY?

The people you choose to act as your Attorneys must be 18 or over at the time you execute your Lasting Power of Attorney.

Your Attorneys must agree to act on your behalf and cannot be appointed against their Will.

Most importantly, you must choose somebody you trust.

Most people choose their husband or wife, and their children or other close family members as their Attorneys, and a trusted friend is often included where there are no close family members.

Ideally, the Attorney you choose should be someone who:

• You trust
• Knows you well and understands what is important to you
• Understand the role they will be carrying out
• Has the skills and ability to perform the role
• Will be able to work well with any other Attorneys you have appointed.

You can also choose professional Attorneys to manage your finances but remember a professional Attorney will charge for any work they do on your behalf.

CERTIFICATE OF UNDERSTANDING

As part of the process of creating your Lasting Power of Attorney (we will refer to this as an ‘LPA’), you will be asked to choose a person who can give a ‘certificate of understanding’. This person is referred to as a ‘Certificate Provider’ in your LPA. The inclusion of the Certificate Provider is one of the safeguards of the LPA, and their role is to ensure that you are capable of making your LPA and are not being pressured into doing it against your Will.

The Certificate is a specific page in your LPA, and your Certificate Provider will be confirming that:

• You understand the purpose of your LPA and the scope of the authority you are giving to your attorneys
• No fraud or undue pressure has been used to make you create your LPA
• There is nothing else that would prevent your LPA from being created.

The person you choose as your Certificate Provider must be someone who has known you personally for more than two years, such as a friend, neighbor, or colleague, or someone with relevant professional skills, such as a GP or solicitor.

Your Certificate Provider cannot be a family member or someone involved with a care home where you live.

Your Certificate Provider must take the time to speak with you about your LPA, and should not sign the form without having done so.

If you would like help to make a Lasting Power of Attorney, please get in touch by email to christine@winterbornelegal.co.uk or by calling 01308 424 808 or 07860 772274

REGISTRATION OF YOUR LASTING POWER OF ATTORNEY

Your Lasting Power of Attorney cannot be used until it has been registered with the Office of the Public Guardian. There is a Court registration fee of £82 for each Lasting Power of Attorney.

At the present time, the Office of the Public Guardian is taking around 15 weeks to register Lasting Powers of Attorney.

FEE EXEMPTIONS AND REMISSIONS
If you are on a low income, or in receipt of certain means-tested benefits, you may be eligible for a fee remission or fee exemption. Read about fee remissions and exemptions here.

CHOOSING AN ATTORNEY – WHAT SKILLS DO THEY NEED?

In your Lasting Power of Attorney (we will refer to it as an ‘LPA’ in the remainder of this article), you appoint one or more people who will be able to make decisions on your behalf. These people are referred to as your ‘Attorneys’.

Your Attorney must consider your best interests when making a decision on your behalf and must follow strict rules about managing your assets.

There are two types of LPA: one that gives authority to your Attorneys to make financial decisions for you, and one which gives them authority to make medical and welfare decisions if you are no longer able to do so yourself.

The person you choose to make your financial decisions will need different skills than the person who you would like to make medical decisions for you.

You do not need to have the same people as your Attorneys for both financial decisions and healthcare decisions.

• A property and financial affairs LPA: This gives your attorney the authority to deal with your property and finances, which includes paying your bills, claiming and receiving benefits on your behalf, making and changing investments, and selling your home. Depending on your circumstances, this could include:
  • claiming State Pension;
  • claiming other state benefits;
  • discussing repayment terms for a loan, catalogue or credit card debt;
  • changing utility companies;
  • cancelling subscriptions you can no longer enjoy;
  • setting up or amending direct debits;
  • paying for routine house maintenance;
  • negotiating an overdraft;
  • increasing house insurance;
  • paying road tax and insurance for your car;
• A health and welfare LPA: This allows your Attorney to make health and care decisions on your behalf, only when you are not able to make decisions for yourself. Your Attorney could make decisions about where you live or are cared for, what diet you are given, they can discuss your medical treatment and be involved in care decisions.
• Your Attorney’s authority could could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.

It is important to take action now, as you can only make an LPA whilst you are able to understand the extent of the authority you are giving to your attorney.

However, Lasting Powers of Attorney do come with a warning. Without proper advice and guidance, you could be giving complete control over all your assets in a way which could leave you vulnerable to financial abuse.

We can help you make sure that you appoint the right people as your attorneys and set out how and when you would like them to be able to act on your behalf.

WHO SHOULD HAVE A LASTING POWER OF ATTORNEY?

Everybody should.

If you are over 18 and have money in a bank account, own property, or have investments, you should have a Lasting Power of Attorney for financial decisions.

WHY?
Because life is unpredictable and not always fair.

Whatever your age, you could be involved in an accident, or suffer an illness with long-term consequences preventing you from taking care of your finances.

Couples often think that they don’t need a Lasting Power of Attorney as, if one of them became incapable, the other could simply take care of everything.

That is not the reality of the situation.

If you have a joint bank account and the bank becomes aware that one of you lacks the capacity to manage their affairs, the account will be frozen. This is to protect the interests of the person who can no longer make their own decisions.

If your pension, dividends, or income had been paid into the joint account, you will be unable to access them. You will be able to arrange to re-direct your own income to another account but won’t be able to re-direct the income of your husband or wife. Do you you rely on their income to contribute to the costs of running your home, or buying food?

You may need to ask for additional borrowing on your mortgage, or for an equity release. If your home is owned by you and your husband or wife, any financial will require both signatures.

If you want to unfreeze your bank account or arrange for additional borrowing to see you through the situation, you could be waiting in excess of six months for the legal authority to be given to you.

Don’t underestimate the inconvenience, distress, and cost of having to apply to the Court of Protection to be appointed a Deputy for your husband or wife, or family member.

WHAT’S THE DIFFERENCE BETWEEN AN ATTORNEY AND AN EXECUTOR?

An Attorney and an executor are both people that you can choose to look after your affairs.

If you have an Attorney, he or she will have been named when you created either an Enduring Power of Attorney or a Lasting Power of Attorney.

Your Attorney helps manage your finances, and makes decisions about your welfare, whilst you are alive. Their authority comes to an end on your death and they must cease dealing with your money.

Your executor is the person you have named in your Will. He or she will deal with carrying out your wishes as set out in your Will. Your executor has no authority to make decisions or manage your finances during your lifetime.

ENDURING POWERS OF ATTORNEY

You may remember the old Enduring Powers of Attorney, which were fairly simple documents set out over a few pages.

Enduring Powers of Attorney which were properly executed are still valid. They need to be registered if the Attorneys believe the donor is starting to lose capacity and we can help with registration.

Lasting Powers of Attorney are longer and more complex documents than Enduring Powers of Attorney. They give you the opportunity to provide additional information to the person or people who will be making decisions for you, so you can explain what is important to you and how you would like your affairs to be managed.

CAN I LIMIT WHAT MY ATTORNEYS CAN DO?

Yes, you can place restrictions on the power you give to your Attorneys.

For example, you may decide that you don’t want their authority to extend to being able to sell your house. But if it became necessary in the future for your house to be sold, your Attorneys would need to apply to the Court of Protection for authority.

You may also choose to limit what can be done by a single Attorney alone so that some decisions must be made by all your Attorneys.

WHAT IS A GENERAL POWER OF ATTORNEY

A General Power of Attorney is a straightforward document that may benefit people who are waiting for their Lasting Power of Attorney to be registered. There are currently increased waiting times for registration.

Creating a General Power of Attorney could be the temporary answer to getting help.

A General Power of Attorney is not a substitute for a Lasting Power of Attorney.

This is because it can only be used while you still have the ability to understand the authority you have given to the Attorney.

If you become unable to make your own decisions after the Power of Attorney has been given, the authority of the Attorney does not continue. Nonetheless, a General Power of Attorney can be a helpful stopgap measure to tide you over until your Lasting Power of Attorney has been registered and returned to you.

WHAT SKILLS DO YOUR FINANCIAL ATTORNEYS NEED?

Depending upon your needs and circumstances, your Attorneys may benefit from having the following skills and knowledge:

• Budgeting and organisational skills;
• Experience in buying, mortgaging, and selling property;
• Knowledge of your preferences regarding investments;
• Knowledge of tax and how it may affect your finances;
• Knowledge of any State Benefits which you receive, or which you may become entitled to;
• Knowledge of any ethical beliefs you may have when spending money, such as buying fair trade products;
• Awareness and understanding of your lifestyle and expectations of living;
• Also helpful would be knowledge of the contents of your Will, to avoid disposing of anything which is the subject of a legacy.

WHY MARGARET DECIDED TO MAKE A LASTING POWER OF ATTORNEY

Margaret was a widow, living alone in a large house in the countryside. Failing eyesight meant Margaret was no longer able to enjoy most of the outdoor activities that had been important to her. Margaret had married later in life and didn’t have any children. She was relying on friends and neighbours to call around and help prepare her meals, clean the house, and order fuel for her boiler.

It was suggested to Margaret by various friends that she didn’t need to manage everything herself. She could make her life easier by passing the burden of taking care of her property and her investments to an Attorney.

Margaret was afraid that an Attorney may try to force her to leave her home and move into a care home. She determined she would remain at home until the end and was adamant that she could manage alone.

However, when Margaret needed to be admitted to the hospital for a medical procedure, she decided the time was right to accept the advice of her friends. She appointed one of them as her Attorney and another as a replacement.

WHAT DID THE ATTORNEY DO?
The Attorney looked after Margaret’s property while she was recovering.

He arranged for Margaret’s defective telephone to be replaced with one she could use.

He arranged for her range cooker to be serviced so that Margaret could have hot meals.

He called in a plumber to repair Margaret’s central heating system. Her house had large rooms and was very cold, so Margaret had got used to sitting covered in blankets to keep warm.

He arranged for Margaret’s freezer to be filled and for milk to be delivered to her door.

He bought audiobooks so Margaret could still enjoy her favourite authors, even though she could no longer see well enough to read.

And he arranged for carers to call around three times a day to provide the basic care that Margaret needed.

WHAT HAPPENED WHEN MARGARET RECOVERED?
When Margaret had fully recovered from her procedure, she decided that she was happy for her Attorney to continue managing things for her. She said that spending time with her friends and enjoying their company was more important to her than anything else.

Although Margaret knew she could afford to make all the changes her Attorney had made on her behalf, she hadn’t felt able to spend money on herself. She wouldn’t have made the improvements to her life that the Attorney made for her. She felt she had to ‘make do’.

Once the changes had been made and Margaret was enjoying the benefit of them, she knew she could leave her financial management in the Attorney’s hands.

Margaret could then concentrate on her friends, her audiobooks, and her warm house (and perhaps the odd whisky) and not worry about when the windows were going to be cleaned or the boiler serviced.

She was comfortable, well cared for, and spent valuable time with the people who meant the most to her. Margaret realised that was what was most important.

Whilst Margaret’s story will be different from yours, appointing an Attorney can still be a positive step for you. Your own Attorney may not need to take up their role quite as quickly as Margaret’s, but it can be reassuring to know he or she is able to help if needed.