Those looking to secure a lasting power of attorney during the Covid-19 outbreak have increased at a time when the Office of the Public Guardian’s capacity has fallen.

Governmental measures have meant that more people are working remotely, self-isolating or shielding from the virus, meaning fewer employees are available to service the increased demand.

While the country remains in lockdown, the OPG has warned people looking to make an LPA that they could face extended delays beyond the usual eight weeks. Given the legal need to have your document witnessed, the OPG also advised non-urgent applications to defer their application until social distancing restrictions are lifted and their departments are working at full capacity. This will also make the process easier for the protected person (P) and their independent witnesses.

The advice does state that people are still able to apply for LPAs in the current circumstances and has suggested a number of workarounds to ensure the document is legally valid.

Remotely Consult With Your Legal Provider

Your legal provider can consult with you via video conference facilities in order to ensure you have mental capacity to proceed and are not creating the document under undue influence.

The call will also help to establish exactly what you would like to protect whether it be financial support through a Property and Financial affairs LPA or health care decisions through a Health and Welfare LPA.

Witnessing The LPA

An independent witness, who is over the age of 18 and not the attorney or the replacement attorney must witness the donor sign the document. Each attorney must also sign it themselves in front of their own witness (who can be another attorney).

This will be a challenging feat when governmental advice suggests people should remain at home and stay at least two metres apart. The OPG advise against inviting people into your home or entering the witness or attorney’s home to sign the document.

It claims that the document could be witnessed through a window, witnessed and signed outside using black ink, or walked round to the various homes and witnessed and signed safely whilst adhering to governmental health advice.

Here at Cornerstone Wills we will witness your Lasting Power of Attorney via video call, however, in accordance with the Wills Act we are legally unable to witness wills via video.

All signatories must also ensure the document is signed in the correct order to avoid having to start the process again. The donor should sign first, followed by the independent witness and then the attorney. All signatures must sign the same single document, using black ink for the LPA to be considered valid.

How Long Will The LPA Registration Take To Process?

In normal life, when the OPG are working at full capacity, an LPA will usually take eight weeks. This includes a compulsory four-week waiting period, created to allow objections and oppositions to be made.

However, the OPG are working at limited capacity and the registration process is likely to take significantly longer. We are living in a time where offices cannot work in their usual ways and whilst it is frustrating, patience and understanding are vital ingredients.

Cornerstone Wills are here to help with answering your questions about Lasting Powers of Attorney. Speak to our experts today, call us on 01276 415835/6/7

A Lasting Power of Attorney is a legal document giving a person legal authority to make financial decisions or medical decisions on your behalf.  

You can appoint a person to either make decisions regarding your health and welfare under a Health and Welfare Lasting Power of Attorney, which will cover things like medical treatment, where you will be treated, and even whether you should receive life-saving treatment (although this will need to be expressly declared in the document).  The only time this power can be exercised is when the person granting it has lost mental capacity.

For financial decisions a person can be appointed a Property and Financial Affairs Lasting Power of Attorney.  Under this the attorney may have access to bank accounts, power to buy and sell property and manage any financial obligations.  This power can be appointed to begin at any time you wish, for example immediately or if you lose mental capacity.

If you wish to make a Lasting Power or Attorney (LPA) then you must be over 18 and have mental capacity.  This means that you have the ability to make a decision, from mundane ones such as what to have for lunch, to important decisions such as where to live.

For most people, this will not be a difficult thing to prove or for it to even be questioned.  However, there is a two-stage test to ensure a person is deemed to have mental capacity:

• Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?

• Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to.

By consulting with a solicitor before making an LPA there is less chance of any problems later on, they will also be able to sign it as a certificate provider; a person that can confirm you have understood the implications of an LPA and you have not been put under any pressure to sign it.

There is no limit to the amount of people you can appoint, but issues can arise if you have many people trying to act on your behalf at once.  It is advisable however to appoint more than one in case the one person you chose to act is unable to do so for whatever reason, such as their own mental capacity, they cannot be traced when an urgent decision is needed or they die and you are no longer considered as having mental capacity.

If you appoint more than one attorney, this can be done so they act ‘jointly’, whether they have to make decisions together, or as ‘jointly and severally’ whereby they can make a decision on their own with or without the decision of the other.

You may also appoint a person to step in and act as a ‘replacement’ should another attorney be unable to act.  

An LPA can help protect couples who have joint accounts that may be frozen if it becomes a concern, to a bank, that one may take control of the account if the other is deemed as having lost mental capacity.  In these cases, it can take months and costly legal proceedings to apply to the Court of Protection to become a ‘deputy’, acting as the legal representative for the mentally incapable partner.  This also means that an annual supervision fee will be payable to the Court as well as annual accounts prepared and a security bond.

LPAs can also be a very useful tool, especially to those who know they have a medical condition where they know they will be unable to make their own decisions, such as dementia.  

Cornerstone Wills are here to help you set up Lasting Powers of Attorney for you or a family member or friend. Speak to our experts today, call us on 01276 415835/6/7

The benefits of an LPA

There are two different types of LPA, one in respect of health and welfare and one which relates to financial matters. By putting them in place while you are able to, your Attorney will be able to act on your behalf in the future, should you become unable to manage your own affairs.

A health and welfare LPA will only be activated once capacity has been lost. A financial LPA can be used before that time so that an Attorney can help someone manage their affairs, for example, by going to the bank on their behalf.

Proving mental capacity when making an LPA

With the onset of a degenerative disease, such as Alzheimer’s disease, many people realise that they will need an LPA to enable someone they trust to act on their behalf.

There will come a point when they lack the mental capacity to put an LPA in place, but at the onset of a degenerative disease there is often still time to arrange their affairs, provided they can demonstrate that they have sufficient mental capacity to understand the effect of the documents they are signing.

The Mental Capacity Act 2005 states that to have capacity to execute an LPA, an individual must have all of the relevant information about LPAs, be able to retain the information and be able to consider the information and make the decision to make an LPA.

No-one may influence them in their decision and they must be able to communicate it, even if it is only by movement or signs.

Once someone has been diagnosed with a degenerative disease, it is always advisable to have an assessment of their capacity carried out before the LPA is executed. This can be done by a GP or social worker, who can also witness the document.

If someone lacks the mental capacity to make an LPA, then their relatives can make an application to the court for a Deputyship Order. This can be a lengthy and expensive process with more ongoing costs than those associated with an LPA.

The best option is usually to sign an LPA well in advance of when it is needed. It does not need to be put into force until such time as capacity is lost.

If you would like to speak to an expert in LPAs and Wills, ring us on 01276 415835/6/7.

There are two types of LPA, one for financial matters and one for health and welfare. You can have one or both in place. They do not have to be used immediately they are signed, but can be registered so that they are ready when needed.

What happens if you don’t have an LPA

If you do not have an LPA in place and you should one day be unable to manage your affairs or make decisions, then no-one automatically has the right to act on your behalf, even if they are close family members.

They would need to apply to the court for a Deputyship Order, which can be a lengthy process and is considerably more expensive than making and registering an LPA. As well as the initial costs of a deputyship application, there are ongoing charges including the annual supervision fee and annual security bond fee.

Putting an LPA in place

An LPA is a fairly simple document appointing someone you trust to deal with your affairs on your behalf in the event that you cannot do so yourself.

A property and financial affairs LPA

A property and financial affairs LPA can come into effect when you choose, so you do not need to wait until you no longer have the mental capacity to make decisions. This can be useful if, for example, you have mobility issues, as your Attorney could go to the bank and other financial institutions on your behalf.

You can word the LPA to give your Attorney the power to deal with all of your property, money and other assets or you can choose to limit it to certain specified transactions or accounts.

A health and welfare LPA

This type of LPA allows your Attorney to make decisions about medical treatment, care and other welfare issues.

You can opt to expressly give the Attorney the power to make decisions about life-saving treatment.

A health and welfare LPA can only be used by your Attorney once you are no longer able to make decisions for yourself.

Putting an LPA into force

An LPA needs to be registered with the Court of Protection before it can be used. By registering it straight away, it will already be in place when required. Otherwise there may be a delay of up to three months while the court processes the application.

If you would like help in making an LPA, speak to one of our expert lawyers on 01276 415835/6/7

As part of planning for the future, it is advisable to think about who will help you deal with your affairs should you become unable to do so, or should you simply need help, for example if mobility issues prevent you from visiting the bank.

At any stage of your life, it is open to you to create a Lasting Power of Attorney (LPA). This is a document which gives your chosen attorney the authority to deal with your financial affairs for you.

Why sign an LPA?

If you should ever lose the capacity to manage your own finances, then it can be a problem if no-one else is authorised to help.

The only way your family will be able to obtain legal authority would be to make an application to the court for a Deputyship Order. This can be an expensive process and usually takes several months. During this time, no-one would be able to act on your behalf, which can cause difficulties in day-to-day financial matters. There is also an associated ongoing annual cost which is considerably higher than the costs of administering an LPA.

When will an LPA be used?

Once an LPA has been signed by you it can be held until needed. It does not come into force immediately, unless it has been registered.

We will usually register each LPA immediately with the Office of the Public Guardian which you can then keep until such time as you lose capacity, or alternatively until you decide that you would like your chosen attorney to help you with your financial affairs.

We always recommend that you also make an LPA in respect of your health and welfare. You can choose a different attorney, or the same one. A health and welfare LPA would only come into force if you lose capacity.

When to sign an LPA

It is advisable to put an LPA in place sooner rather than later. It doesn’t have to come into force until you are ready.

You will not be able to make an LPA once you have lost capacity. This means that there is a risk involved in leaving it until you are older.

By signing an LPA while you are still able to manage your affairs, you can be sure that if and when the time comes that you need help, your chosen attorney will have the authority they need to act on your behalf.

It will also give you the opportunity to discuss matters with them and ensure they know how you would like them to act.

If you would like help in preparing an LPA, speak to one of our expert lawyers on 01276 415835/6/7.

Giving someone the information they need to deal with your money may seem like a good solution if you’re concerned about being unable to deal with your bank and other financial institutions yourself. But this has serious legal implications for both you and those to whom you give access.

Often banks will allow you to become a joint account holder with another party (such as a son or daughter) to enable them access to your account; but this has other implications as there is then no control or accountability and in the event of your death any funds in that account would pass automatically to the joint holder and not via your Will.

Why you should never give someone informal access to your bank account

Firstly, this is likely to be a breach of the agreement you have with your bank. They do not permit the sharing of your personal security information with anyone.

If money was to be wrongly appropriated from your account, suspicion might fall on your family member. If money has been wrongly taken by a third party, the fact that you have breached your bank’s terms and conditions may mean that they do not have to cover the loss, even if they would have done so had you not breached their agreement.

There is no form of supervision of this sort of information access to your funds. Your family member will not have any legal protection for their actions, and could face suspicion over their use of the money.

There is a chance they may be tempted to borrow funds that they have access to. Even if they intend to pay the money back, if circumstances mean that they can’t, they could end up in a difficult position.

Granting legal authority for someone to help with your financial affairs

Fortunately there is a way of formally granting someone the authority to deal with your financial matters. A Lasting Power of Attorney (LPA) gives a family member or other trusted acquaintance the ability to help you. The document will be signed by you and then registered with the Office of the Public Guardian, who will give some supervision of the attorney.

The LPA can be put into effect at once, or saved until you don’t have the ability to deal with your affairs any more. It will give your chosen attorney the legal right to deal with your financial matters.

Without an LPA, if your relatives need to help you, should you lose the capacity to handle your own finances, they would need to make an application to the court. This can take several months to process and is a far more expensive procedure. It also involves ongoing costs.

By signing an LPA while you are able to do so, you can ensure that your family have the authority they need and that they will be able to step in and help as soon as you want them to.

To speak to one of our expert lawyers about drawing up an LPA, ring us on 01276 415835/6/7.

There are two types of LPAs, one covering property and financial affairs and one covering health and welfare.

It is possible to ask your attorney to deal with your property and financial matters while you are still capable, for example if you have limited mobility and find it difficult to get to your bank. Your health and welfare matters can only be dealt with by your attorney once you can no longer make decisions for yourself.

You can choose to sign only one type of LPA if you wish but this is not something that we would recommend due to the costs and the time it takes to go through the court process; additionally, although the court will appoint a deputy to look after your finances but is extremely rare for the court to appoint a deputy to look after your health and welfare.

Who should you appoint?

You should choose someone whom you trust implicitly, as they will potentially have a great deal of say over your life and financial affairs. You can choose one person to act as your sole attorney or several to act jointly.

Your attorney needs to be aged 18 or over and in respect of a financial and property LPA you cannot appoint anyone who has been declared bankrupt or who is subject to a debt relief order.

If you do not feel that you have a family member or close friend who can act on your behalf, it is possible to appoint a professional such as a solicitor, who will charge a fee to deal with your affairs and who will be under a duty to act in your best interests.

What your attorney needs to know

You should ensure that your attorney is happy to be appointed, and that they know what responsibilities this will entail.

Give your attorney as much information up front as you can, letting them know what you will expect them to do for you and the scope of what they will be dealing with.

Let them think it through carefully and without pressure so that they can make the right decision. If they do choose to act, then discuss your wishes with them so that when the time comes they will know how you would like them to proceed.

It is a good idea to have a second choice attorney in place, in case your first choice is unable or unwilling to act when you finally need them to.

If you would like to discuss appointing an attorney, ring one of our experts on 01276 415835/6/7.

An LPA gives someone the right to manage your affairs after you become incapable of doing so. You can execute an LPA in respect of your health and welfare and/or in respect of your property and financial affairs.

The Ministry of Justice has announced that the OPG overcharged those who registered an LPA between 1 April 2013 and 31 March 2017, and that they are entitled to a refund.

So far only 200,000 claims have been made out of 1.8 million who are qualified to do so.

Making a claim

Either a donor or an attorney can make the claim. They will need to supply the donor’s bank details, as the payment will be made to the donor. A copy of the LPA should also be included.

The claim form can be accessed via the government information page https://www.gov.uk/power-of-attorney-refund. In some cases, including where the donor does not have a bank account or the applicant is a court-appointed deputy, the claim will need to be made by phone by calling the helpline on 0300 456 0300, option 6. The deadline for claims is 1 February 2021.

How much will be refunded?

The amount of the refund will depend on when the LPA was registered, as fees paid differed over the time period in question.

Date fee paid                                    Refund

Apr to Sept 2013                                £54

Oct 2013 to Mar 2014                       £34

Apr 2014 to Mar 2015                       £37

Apr 2015 to Mar 2016                       £38

Apr 2016 to Mar 2017                       £45

A claim can be made for each LPA registered. Interest will also be paid at a rate of 0.5 percent.

Who needs an LPA?

It is advisable for everyone to take the time to make an LPA, so that in the event they become unable to manage their affairs, either through illness, injury or incapacity, their chosen attorney can step in to help.

In the absence of an LPA, application would need to be made to the court, which could be an expensive and time-consuming process. This could also mean that you might not have your first choice of attorney acting for you.

You can execute an LPA, then keep it until such time as it is needed, at which point it is registered with the OPG.

If you would like to talk to one of our expert lawyers about drawing up an LPA, ring us on 01276 415835/6/7.

A Lasting Power of Attorney (LPA) is a formal document by which an individual can give one or more people access to their financial affairs and the power to spend money on their behalf.

It is relatively simple to set up and register, but it seems that many older people are choosing to give others informal access to their bank accounts instead.

A recent survey carried out by the Co-operative Society found that a quarter of over-45 year olds have been given access to the bank account of someone other than their spouse.

While this may seem like an easy solution to allow people to help out older relatives, the truth of the matter is that there are serious implications for all involved.

Why granting informal access to a bank account should be avoided.

Firstly, there is no protection for the owner of the bank account. The access will not be supervised in any way and it may become increasingly hard for the person granting the access to keep a check on their finances.

It offers great scope for abuse by the person to whom the access is granted. While they may start out with good intentions, the temptation to misappropriate funds might be hard to resist.

If the person owning the bank account dies, the administration of their estate may be delayed as investigations are made into any improper use of funds by the person with access.

There is also room for suspicion by other relatives if there has been no supervision over years of informal access.

The advantages of using a Lasting Power of Attorney.

By using a formal document to give someone official access to your financial affairs, everything is kept above board and visible.

There is far less scope for abuse as the document is registered with the Office of the Public Guardian (OPG) once it is put into use and the OPG will supervise the attorney’s activities.

If the OPG suspects that the best interests of the person granting the LPA are not being observed, they have the power to investigate. They can remove the attorney and appoint a replacement if they find any impropriety.

How to set up a Lasting Power of Attorney

An LPA can be completed before it is needed and then kept until the time that you decide you need an attorney to help with your affairs, when it will be officially registered.

To speak to one of our expert team about setting up an LPA, call us on 01276 415835/6/7 

Welcome to our February 2015 Newsletter.  In this newsletter we discuss what you, as a business owner, should consider and set up in preparation for you becoming seriously ill, incapacitated or dying.

If you wish to download the newsletter in PDF please click on the link below.

February 2015 Newsletter

Business Owners

If you are a business owner; as a sole trader, partner or shareholder, two very important considerations within the management and planning of your business must be:

1. “what do you want to happen to your business if you become critically ill?”
2. “what do you want to happen to your business if you die still owning the business?”

Perhaps in expressing these questions to you in this manner you’re not particularly concerned, perhaps because you’re not aware of the consequences. But, perhaps, if they were expressed with a slightly different slant you would be more concerned:

1. “what would happen to your business if a business partner becomes critically ill?”
2. “what would happen to your business if a business partner dies?”

Further questions to item 1. might include: can the bills and wages be paid?, what deals or contracts need signing?, what business decisions need to be made or voted upon?

And additional questions to follow item 2 might include: do I want to share the running of the business with my business partner’s spouse or partner or children and accept their voting rights?, do I want to share business profits with someone who is not contributing to the growth of the business?

From your own personal perspective further questions ought to include: do I wish the business to die with me? Do I want the proceeds to pass to my spouse/family? What are the potential repercussions for my spouse, partner or family stepping into my shoes? What are the tax consequences for my family on the option I have taken?

A simple pair of mirror Wills will rarely be enough to manage a business asset post-death. A Business Lasting Power of Attorney needs to be established if you become incapacitated.

Cornerstone Wills can have a full and in-depth conversation with you and your business partners. This is vital as ultimately it could preserve the continuity of trade of your business at your death or incapacity, save large amounts of Inheritance Tax and ensure that your business interests pass into the right (rather than the wrong) hands.