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Tipi Wills & Planning
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Tipi Wills & Planning
"An Englishman's home is his castle"
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We are pleased to announce the formation of Isle of Wight Mediation to focus on a wide range of mediation. Our name is changing to Tipi Wills & Planning. Its unique combination of services for planning and mediation remains
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POWERS OF ATTORNEY : WHO CAN BE ONE AND WHY YOU MAY NEED ONE.
HAVE YOU USED YOUR LPA FULLY TO PREVENT ABUSE?
​You may not be aware that the subject of lasting attorney powers and ensuring your protection when making them, is a large one. The law surrounding your rights and protection is large. Giving someone attorney rights is a very important power which should be considered carefully. The facility is there to aid us all in our daily living, but everyone should understand the significance of using this facility.
I will introduce you to areas, through various articles, that aid you in making informed decisions. When giving a person an attorney I do encourage you consider either acquiring for yourself or obtaining, good and proper legal advice, before embarking on creating legal documentation.
If you wish, or need, to help someone, there are a number of ways to manage someone’s affairs. Lasting Power of Attorney is just one of them. You will need to choose the right one depending on the circumstances of the person whose affairs you wish to manage, and whether or not they have mental capacity.
You can look after someone’s affairs in one of the following ways :
- with a letter or a third party mandate to deal with a bank, building society or other financial account. You will need to talk to the bank about organising this
- as an agent or appointee to deal with someone’s welfare benefits or tax credits (more information under Welfare benefits on the citizens advice.org website
- with a power of attorney. There is a General Power of Attorney which is commonly used for temporary situations and there are also Lasting Power of Attorneys for either Health or Finances
- as a deputy appointed by the Court of Protection. Once someone has lost their mental capacity it is no longer possible to make a power of attorney as they are no longer able to appoint an attorney for themselves (By planning you hope to avoid such situations). If there is a continuing need to make decisions in the absence of planning and relevant documents, you can ask the Court of Protection to appoint you as a deputy. A deputy is usually a family member or someone who knows the person well. A deputy can make decisions about someone’s personal welfare, property and financial affairs. It is complicated to apply to be a deputy and you will need to find a solicitor to aid with this. Where there is no family member, someone can be appointed from a panel. The Office of the Public Guardian will be responsible for supervising and supporting you.
- If necessary, you can apply for an emergency order. You should get legal advice if you are considering this.
So, you are now ready to put a Lasting Power of Attorney in place. What does that mean? A Lasting Power of Attorney is what is says on the tin, attorney powers are given that last until death or the powers are revoked. It is not irreversible, as once you give powers to an attorney you are free to revoke them at any time. Additionally, LPA powers for health cannot be activated until capacity is lost. However, for financial affairs it can be used whilst you have mental capacity if that is what you prefer and there may be extra considerations when preparing one for elderly care.
WHY GET ADVICE ON YOUR POWER OF ATTORNEY WHEN I CAN JUST DOWNLOAD ONE? A legal professional when advising you on an LPA, must ask if you have considered all the points above as well as advise you on a number of other things. This is time consuming so can be expensive, so in order to sell you just the document, you will be presented with a disclaimer that you do so at your own risk. Legal professionals are therefore, ever increasing their ways of being efficient and informative in providing the advice they are obligated to give in a cost effective manner.
It’s important to be obtain the proper information or advice before you hand over any money and organisations who do not are not acting in your interests ensuring your care or safety, hence they have to produce a disclaimer in order to sell you the forms. So, although you can obtain and download an LPA online and hand over a fair amount of money for it, you may or may not read the disclaimer and it is generally not well understood as to why it is there. The benefit of course, is that if you do know, you can do it yourself.
You may not know how to complete the forms accurately and without conflicting instructions, and thus prevent significant costs if the OPG (Office of Public Guardian with whom you will register the LPA) reject your forms, which is unfortunately common. Resubmitting the forms means starting again with the fees. This also means you will not have been advised on how use the LPA to create protections for yourself to avoid attorney abuse. You are giving the power to someone to act entirely as if they were you. (See my website for Isobel’s story). The court is littered with cases of Attorney or Executor abuse or failings. It is not an insignificant matter to raise. Giving you the power to do it yourself, also gives you the responsibility to ensure you have made yourself well informed, however you do that, before embarking on the preparation of such documents.
This would include having a discussion on the benefits of making an LPA and why you are doing one, but it should also be about the risks that the power can be abused and how you can reduce those risks. You can give certain powers only and restrict powers. You may also use various clauses, for example that instruct no medical decisions or moves into a care home are made without it being deemed necessary by a medical professional. Within this discussion should be a conversation about an Advance Directive / Living Will should you wish to consider refusing medical treatment. Do you really want to tick the box on the form that hands over that power to an attorney without considering the consequences of that? If you know what your wishes are, you should say so and have that recorded and thus can direct an attorney to them. This is where the discussion on an Advance Directive / Living Will should be had.
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You should also be advised on whether an Ordinary Power of Attorney would be sufficient in your circumstances, for example where only temporary cover is required.
I cannot emphasise enough how important it is that you avoid trouble and strife later for the sake of appearing to save a relatively small sum now. Even Martin Lewis has stood up and said that your Powers of Attorney are arguably more important than your Will ! You are not buying a pair of shoes, that if they fail you can throw away or take back. The consequences of such legal matters going awry can be awful.
Did you know certain people cannot be your Lasting Power of Attorney? The person creating an LPA is called the Donor and the donor can appoint anyone to be an attorney, subject to certain conditions, but only certain people are permitted to be a certificate provider. A certificate provider must be able to act independently of the donor and his or her attorney(s).
You cannot appoint a certificate provider who :
Is a business partner
Paid employee
A family member including a spouse, civil partner, or step-relative
If you create a financial LPA, your attorney can make decisions about things like:
selling your home, paying your mortgage and bills, arranging repairs to your home but certain conditions apply for a property and financial affairs LPA.
The attorney must not be bankrupt or under a debt relief order.
Any attorney must be 18 and over and have mental capacity.
In addition, do you have a business? Have you put in place your ? You may need this to assist a business to continue trading, prevent a bank from freezing its bank account, raising issues about payments and overdrafts, or reduce the risk of a regulatory body intervening to close a business if there is no-one authorised to make decisions. As you can see the considerations are significant which is why if one is not made and there is damage to the business as a consequence, you/your estate can be sued.
There are a large number of considerations in giving power to an attorney, not least of which involves choosing a person in such a way as to reduce risk to yourself. My opinion is that you need to choose someone you really trust, but, also assume the worst of an attorney so that you can choose the best attorney and make the best LPA to protect you.
Remember, an LPA does not continue after your death. If you have matters and circumstances within your estate, and particularly a business, that you know need to be organised with care, then you may also need to give specific instructions to an executor, and/or appoint a specialist executor.
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IN SUMMARY
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Preparing for the future means you are putting in place plans in case the unforseen or unwanted happens. Planning and preparing protects you, your loved ones and your property. You will be creating a level of control and certainty that you will not have unless you do the preparation. Don't leave it to chance when you can leave instructions and directions for everyone to live their best lives no matter what happens.
If any of the issues raised here are of interest or concern to you, please do contact me to discuss.
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Written by Patricia Horwood Sept 2024
Society of Will Writers and Estate Planning Practitioners
Society of Mediators