Lasting Power of Attorney - Sutherland & Co Law
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Lasting Power of Attorney and Court of Protection

What is a Lasting Power of Attorney, why do we all need one and which one do you need?

A brief explanation

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We understand that you may want to enter into a Lasting Power of Attorney.  This is when a document is drawn that allows you to choose someone that you trust to act as an Attorney, to make decisions on your behalf about things such as property and affairs or personal welfare at a time in the future when you no longer wish to make those decisions or you may lack the mental capacity to make the decisions yourself.      

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There are two types of Lasting Powers of Attorney:

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Health & Care Decisions LPA

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This Lasting Power of Attorney deals with decisions in relation to your personal healthcare and welfare.  This only allows decisions to be made by somebody else in circumstances where you lack the capacity to make decisions yourself, such as you are unconscious or because of the onset of dementia.  This LPA does not allow your Attorney to deal with your financial affairs therefore if required a Property and Affairs LPA must be drawn.  

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Financial Decisions LPA

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This Lasting Power of Attorney deals with decisions in relation to your property and financial affairs, for example, it may be easier for somebody else to pay bills, collect benefits, sell your house etc.  This LPA does not allow the person you have chosen to be Attorney to make decisions and deal with your personal health and welfare therefore a separate Personal Welfare LPA will need to be drawn. 

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These Lasting Power of Attorney’s would therefore deal separately with your specific needs.

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Please therefore think carefully which LPA would be most suited to your current and future circumstances as it may be that only one or both LPA’s will be necessary for an Attorney to assist you currently and in the future.

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It is very important for anyone over the age of 16 years of age to have a LPA.  If you do not have a Lasting Power of Attorney and you have a serious accident, or if you were diagnosed with dementia,  and you were unable to deal with your financial affairs then no-one would be able to handle your financial affairs.   This could then have an impact on your family/relatives especially if you support your family financially. The only legal way your family could deal with your financial affairs, without a Lasting Power of Attorney in place, would be for them to apply to the Court of Protection (“COP”) to be appointed as a Deputy. An application to be appointed as a Deputy is a costly and lengthy process.  The legal fees for a Lawyer to draft the papers and application will be quite more compared with the costs involved to do a LPA, the COP fees are higher compared to their registration fe for registering LPA’s and it can take around 6 months tor COP to agree for your family member to be appointed.  In addition COP may also place restrictions on the appointed for example, they may place restrictions to say that sums of money in excess of £500 may need prior approval from them, and again this would incur additional fees to obtain their approval.  Annual accounts would also have to be sent to COP and again additional fees are charged in relation to this.   Once an LPA is registered then the Attorney can act on your behalf (so long as you do not place any restrictions on the LPA) and deal with your financial affairs.

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If you were to be diagnosed with dementia and were unable to make suitable decisions about your health and welfare then in order for your relative to make those decisions for you, there would need to be a Health & Care Decisions in place.  Whilst one would hope that Doctors and Social Services would take your family’s wishes into account when deciding on life sustaining treatment, where you were to live etc, without a Health & Care Decisions LPA in place, legally they do not have to adhere to your family’s decision.   By having a Health & Care Decisions LPA in place this gives the Attorney the legal right to have a say in any life sustaining treatment you may need (subject to you authorising them to do this in the LPA) and also on the health and care decisions that may need to be made.

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The Court of Protection generally do not issue Deputyships for Health & Care unless in special circumstances.  We can assist with Court of Protection applications to become a Deputy.   If you have a relative that has been diagnosed with dementia and they do not have a Lasting Power of Attorney then call 01302 279179 or click here to request a call/email back.

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For a Lasting Power of Attorney to take immediate effect it must be registered with the Public Guardian.  A Lasting Power of Attorney can only be drawn by an adult with full mental capacity therefore it is advised that they are drawn before they are needed to avoid complications in the future.

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If we do not register your LPA when this is drawn up then your Attorneys will need to wait until the LPA is registered with the OPG before they can act under the LPA as your Attorney.  This would mean a delay of at least 6-9 weeks.

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Please call 01302 279179 for more information or click here to request a call/email back.