Lasting Power of Attorney (LPA) – Couples
Q. What will happen if you can’t manage your own financial affairs due to accident or illness?
A. Joint assets (including bank accounts) can be frozen and property can not be sold, leaving loved ones extremely vulnerable.
Q. So what would your family need to do?
A. A lengthy, costly and intrusive court process will follow. In the interim, your spouse/family may be left in limbo, without access to funds whilst the bills pile up.
Q. What is the solution?
A. By planning for such scenarios in advance, you can put the appropriate legal measures in place to have your spouse/family take over the running of your affairs with minimum fuss, expense and delay. The simple step of creating a Lasting Power of Attorney will save time and money and will allow you to appoint those you trust to help at a time of need.
“We all know how important it is to plan for the future. Having a Lasting Power of Attorney (LPA)…in place should be as common and natural as making a Will. It ensures that a person of your choosing will be able to manage your affairs should you lose capacity, be it as a result of dementia, mental illness or an accident.”Jack Straw, former Lord Chancellor and Secretary of State for Justice
There are two different types of Lasting Power of Attorney which are to be used in different situations:
Property and Financial Affairs Lasting Power of Attorney – this allows you to nominate trusted family/friends to act on your behalf in relation to your financial matters, paying bills etc.
Health and Welfare Lasting Power of Attorney – this allows you to appoint trusted family/friends to make decisions on your behalf regarding your care and day to day wellbeing in the event of mental incapacity.
If you instruct us to put power of attorney in place there are three options that you can choose from;
- We can prepare the Lasting Power of Attorney instruments. These are the main documents that when registered and finalised are the documents that your appointed attorney/s produce to organisations (such as your bank/building society) so that any such organisation will accept their instructions on your behalf.
** Please note that if we are only instructed to prepare the instruments before the powers of attorney can be used the remaining procedure must be followed to register them. Typically when the Office of the Public Guardian is asked to register powers of attorney it will take around two to three months for the registration to be completed.
If Lasting Power of Attorney instruments are not registered immediately this can give rise to issues such as in the example set out below;
Mr. & Mrs. Smith both complete Lasting Power of Attorney instruments with the intention of appointing each other and their daughter as attorneys. As part of the process they also specify within the documentation that they intend for their friend and neighbour, Mrs. Jones to be notified.
At the time of completing the forms Mr. & Mrs. Smith decide not to register the documents, preferring to do so at a late date if, or when one, or both of them become concerned that they may not be able to deal with their everyday affairs.
Five years later Mr. Smith is in a car accident that leaves him in a persistent vegetative state as a result of which his wife and daughter wish to register his powers of attorney. By this time the good friend that Mr. & Mrs. Smith specified to be nominated when registering their powers of attorney has passed away. As a result of this the documents cannot be used and due to Mr. Smith’s condition he is not in a position to be able to prepare fresh power of attorney documents, therefore the only avenue open to Mrs. Smith and their daughter is to make an application to the Court of Protection, which is likely to be onerous and very expensive.
Mr. & Mrs. Smith could have done one of two things;
- They could have completed the full power of attorney process at the outset and then simply stored the documents for future use. This would have removed all of the issues and problems referred to above. In the event of the accident referred to above Mrs. Smith and their daughter would have been able to produce the documents immediately and deal with matters on Mr. Smith’s behalf.
- At the time that they completed the initial documents they could also have carried out the notification of the person concerned then when registering the documents they would be able to confirm to the Office of the Public Guardian when the notification was originally carried out.
**Note in this scenario while it should be possible to register the powers of attorney the registration process will take two to three months to complete during which time the intended attorneys will not have the authority to deal with the everyday affairs of Mr. Smith.
Your options in summary;
1. Complete the Lasting Power of Attorney instruments;
2. Complete the Lasting Power of Attorney instruments and the notification element of the procedure;
3. Complete the whole process in one go in order that the Lasting Powers of Attorney can simply be stored until the are needed.
While it is of entirely of your choosing as to which of the above options you select we strongly advise our clients to select option three as this removes any potential issues, or delay as set out above. Please note that the example above is limited and there are other potential pitfalls.
In addition from a cost point of view our quotes, both in respect of our costs and the fees charged by the Office of the Public Guardian for processing applications over time fees are generally increased therefore it is likely to be more cost effective to complete the full procedure in relation to power of attorney now, rather than part now and part in the future.