Lasting Power of Attorney

We like to equate a Will to life assurance – you’ll definitely be claiming on that policy as no one gets out alive; LPAs are more like buildings insurance — hopefully you will never need to claim on that policy but if you need it and you do not have it, it can get very complicated, time consuming and expensive. It can be incredibly stressful for your family if they are having to deal with both your lack of mental capacity and possibly moving you into a home and trying to access your finances.

Mental Capacity is a time and decision specific concept, and thankfully the default presumption is that you have capacity. Just because you make an unwise decision doesn’t mean you lack it. For example, a spontaneous purchase that you know you’ll never use may show a lack of wisdom and self-knowledge but does not mean incapacity!

An LPA allows you to appoint attorneys and replacement attorneys who can make decisions about your health and welfare and/or property and finance if you are not able.

Our team at Branch Austin McCormick will:

• discuss the implications of making an LPA and the best way to protect yourself;
• advise on powers and restrictions;
• act as your certificate provider confirming you understand the document;
• supervise the convoluted way the document needs to be signed;
• submit the LPAs for registration at the Office of the Public Guardian as they need to be registered before they can be used;
• provide certified copies of the LPA for you and your attorneys;

With business owners, we advise as to whether they should make a separate business LPA and on whether their articles of association should be amended as the standard articles do not cover mental incapacity sufficiently.

Deputyship legal advice

If you lose mental capacity, and do not have a registered LPA in place, no one can deal with your affairs until someone applies to the Court of Protection to be appointed your deputy. The court will grant property and finance deputyships, but it is very rare to obtain a health and welfare one. The Court order can take over a year to be issued and the application requires a great deal of paperwork and bears a fee of £371 which is significantly higher than the £82 fee to register an LPA.

During that time no one can access your bank account to pay your costs or indeed cancel direct debits. For example, we made an application for a gentleman who was moved into a care home and we could not stop his unnecessary outgoings such as his internet and satellite access at his empty home for a year. It’s worth bearing in mind that the person appointed to be your deputy may not be who you would have wanted to look after your finances.

Our  solicitors can assist in applying for a deputyship if a loved one has lost mental capacity without making an LPA. We will talk you through the process and prepare the application forms for you and the issuing of the application.

We also assist in other Court of Protection matters such as statutory wills, the making of gifts and tax planning and the winding up of trusts.