Lasting Power of Attorney
It is wrongly assumed that in the event of you losing mental or physical capacity, your spouse, or even your long term partner, can step in and act on your behalf, Their status of spouse or long term partner does not gives them a legal right to do so.
Without a Lasting Power of Attorney in place, the Court of Protection is the only Court that can grant a legal right to an applicant to act on behalf of a person.
A Judge would have to consider your application to act on a person’s behalf and this legal right, called a Deputyship. It is not given easily.
The Judge may ask why didn't the incapacitated person take the time to create a Lasting Power of Attorney and give permission for their spouse or long term partner to act on their behalf.
If the Judge does grant the legal right, he or she may put certain conditions on the judgement, these could include submitting detailed accounts or needing to take out special insurance to protect against fraud and dishonesty.
Applying for a “Deputyship” is expensive to obtain as you have to create a Court Application, maybe with the help of a solicitor, and then a judgement has to be made. This can be costly and time consuming.
Having a Lasting Power of Attorney for either Financial Decisions or Care Decisions (or both) avoids the need for the person who you would want to make decisions on your behalf (your attorney) having to go to the lengthy and expensive process of applying to the Courts to get permission from a Judge.
There are two LPA’s, one for Financial Decisions and the other for Care Decisions.
The LPA’s can be agreed, prepared, signed and ready to be registered if and when needed.
Some people decide to register the LPA’s as soon as they are created and not wait until the person making the LPA’s (called a “Donor”) loses mental capacity.
This can save time as even with a completed but unregistered LPA, it does take several weeks for the registration process to complete.
We consider that having LPA’s created at the same time as having your Will drafted makes for perfect sense as it provides much needed comfort knowing that if you ever needed help to make financial or care decisions now or in the future that you have appointed to right people (called your Attorney’s) and that these legal documents can be registered and used without the need to apply to the Courts.
It is worth noting that you are only able to make LPA’s if you are deemed to have full mental capacity, so if you wait until you or someone else thinks you are losing or have lost capacity then you have waited too long and you will not be able to create an LPA and only have the Court and Deputyship option left open.
If you would like to find out more about how our services can benefit you then fill out the form below and one of our friendly advisers will contact you shortly.