Lasting Power of Attorney, Power of Attorney, Uncategorized

Lasting Powers of Attorney – helpful or not?

Denzil Lush, former Senior Judge of the Court of Protection, warned the public recently that he believed Lasting Powers of Attorney (LPAs) may leave elderly people open to abuse.

An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.

In the foreword to a new book on the subject, Mr Lush raised concerns about the “lack of transparency” in how appointed attorneys manage older people’s finances.

However, we in the Morrish Solicitors elderly client team, think LPAs are effective safeguards when created responsibly and national organisation Solicitors for the Elderly (SFE) agrees:

“Senior Judge Lush’s comments have given rise to fears that LPAs are a direct avenue for financial abuse. However, his comments must be put into context, as his 20-year career at the Court of Protection will have presented him with the very worst cases of financial abuse.

“An LPA can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity. Senior Judge Lush’s comments should highlight the clear need for professional advice when considering powerful legal documents of this nature.”

Top tips on drafting a lasting power of attorney

SFE is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers and chartered legal executives, who provide specialist legal advice for older and vulnerable people, their families and carers. SFE has been campaigning to ensure essential checks and controls are conducted when making an LPA. Here are their top tips to ensure your LPA is effective, legally robust and safe:

Plan early – While you have capacity, it’s vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You can’t appoint an attorney once you lose capacity.

Choose carefully – Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility.

Consider appointing a professional – A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost.

Think about different circumstances – Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?

Address the difficult questions – Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document.

Seek professional advice – Shop-bought and online LPA kits may be suitable for those with very straightforward financial situations or with considerable legal experience, but for most people, seeking professional legal advice is the best way of ensuring that an LPA is what they want.

Keep your plans current – Make sure you keep your LPA updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

Tom Morrish and Monika Volsing of the elderly client team here at Morrish are both fully accredited members of Solicitors for the Elderly. They and their colleagues would be happy to discuss LPAs with you – contact us on 0333 3449609.

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Court of Protection, Lasting Power of Attorney, Power of Attorney

The mysteries of the Court of Protection

What is the Court of Protection?

This is the Court which deals with matters relating to the affairs of people who are not able to handle their own affairs. Typically it deals with cases where elderly people develop dementia or other illnesses affecting mental capacity, which means that the individual is not able to manage their own financial affairs. Other cases involve people who suffer head injury following clinical negligence or road traffic accidents.

Why is the Court needed?

When people cannot make their own decision, then the Court needs to ensure that appropriate decisions are made for these individuals, allowing actions to be taken which are in the best interests of the person concerned.

What if there is a Power of Attorney?

If the individual has signed a Power of Attorney at a time when they were fit and well, then the person appointed as Attorney will be able to make the decision, and usually this will avoid the need for the involvement of the Court of Protection.

An individual might have signed an Enduring Power of Attorney (before 1st October 2007) appointing someone to manage their financial affairs. From the beginning of 1st October 2007 individuals have been able to sign a Lasting Power of Attorney for property and financial affairs (appointing someone to deal with their financial affairs) or for health and welfare (appointing someone to make decisions about health and welfare needs).

What is a Deputy?

A Deputy is someone appointed by the Court of Protection to supervise the affairs of a person who is unable to manage their own affairs. A Deputy might be appointed for finance, which means that that person can manage the financial affairs of the person concerned, subject to supervision from the Office of the Public Guardian. The Court may appoint a Deputy for health and welfare, which means that the Deputy can make health and welfare decisions for such persons in cases where that person cannot make their own decisions. Appointments of Deputy for health and welfare are much less frequent than for financial affairs, but the Court will make such an Order in necessary cases.

Specialist Advice

Members of the Elderly Client Department at Morrish Solicitors are experienced in handling Court of Protection matters. Tom Morrish has been appointed as Court of Protection Deputy in dozens of case over the last fifteen years or so supervising the financial affairs of elderly persons who have lost their mental capacity, or of persons who have suffered head injuries as a result of an accident or clinical negligence.

Can the Court of Protection be avoided?

In many cases this can be avoided by advance planning. Getting your affairs in order by signing Lasting Powers of Attorney in most cases avoids the need for the Court of Protection, even if later in life you suffer deteriorating health and an inability to manage your affairs.

Contact one of our Elderly Client Team for advice in this area of work. It’s always best to obtain specialist legal advice rather than dabbling on the Internet or obtaining misleading advice or comment from friends who think they know the answer.

Yeadon Office
Tom Morrish
Kiranjeet Chana
T: 033 3344 9609

Pudsey Office
Charlotte Bandawe
Christina Taylor
T: 033 3344 9607

Lasting Power of Attorney, Uncategorized

The Importance of Instructing a Solicitor or Professional when Preparing a Lasting Power of Attorney

A Lasting Power of Attorney is a powerful and important legal document.  By making a Lasting Power of Attorney you are setting up an arrangement which will potentially give someone authority to deal with everything you own and your personal care at a time when you will be at your most vulnerable.

The benefits of using a solicitor/professional are as follows:

  1. A dedicated professional whose expertise are those of drafting Lasting Powers of Attorney. They will look after you throughout the whole process.
  1. They will prepare all documentation for you and explain all options that can be taken.
  1. They will deal with the registration process with the Office of the Public Guardian.
  1. They will agree a fixed price up front with no hidden charges.
  1. They will act as your certificate provider so that no third party is required.

There are many errors that can be made when preparing a Lasting Power of Attorney but by using a solicitor/professional who specialises in Lasting Powers of Attorney, these errors are less likely to occur.

Some common errors are:

  1. When appointing more than one Attorney and you appoint those Attorneys jointly, if one Attorney predeceases the Donor or is unable to act for any reason, then the other Attorney cannot act alone. Therefore, the Lasting Power of Attorney becomes void.  This would result in a new Lasting Power of Attorney having to be made.
  1. There is a strict order of signing the Lasting Power of Attorney which must be maintained. First must be part A, then part B and finally part C.  If these are signed and dated in the incorrect order the Lasting Power of Attorney would be rejected at registration with the Office of the Public Guardian.
  1. Any mistakes made on the Lasting Power of Attorney must be crossed through, written again and initialled by the person completing that particular section and witnesses if appropriate. If the mistakes are not initialled again, the Lasting Power of Attorney could again be rejected at registration.

These errors are just to name a few but there are many more that could cause a Lasting Power of Attorney to be rejected when registering.

In some cases, the Donor may require use of the Lasting Power of Attorney quite urgently.  Registration is currently taking 2-3 months, however, if the Lasting Powers of Attorney is rejected at registration this can hold things up considerably.

Therefore, it is beneficial to instruct a Solicitor/Professional to prepare a Lasting Power of Attorney. Please contact our Elderly Client Department for more information on:

Pudsey – 0033 3344 9606

Yeadon – 033 3344 9609

or email info@morrishsolicitors.com

 

Lasting Power of Attorney, Power of Attorney

Lasting Power of Attorney Month @ Morrish

What is a lasting power of attorney (LPA)?
It’s a legal document that lets you (the ‘donor’) appoint people (known as ‘attorneys’) to make decisions on your behalf. It could be used if you became unable to make your own decisions. There are two types of LPA: health and welfare; and property and financial affairs. You can choose to make one type or both.

You must be 18 or over and have mental capacity – the ability to make your own decisions – when you make your LPA. You may need a court-appointed deputy instead if you’re not able to make your own decisions.

Why do you need an LPA?
If you find you’re in a position where it’s getting difficult to get out of the house to go to the bank, post office, etc, or you’ve been diagnosed with a condition that means your mental capacity will deteriorate, like dementia, making an LPA now could help you choose someone you trust to help you make decisions or act on your behalf in the future.

A health and welfare LPA allows you to choose one person or more to make decisions about things; like your daily routine (e.g. eating and what to wear), medical care, moving into a care home and life-sustaining treatment. This type of LPA can only be used when you’re unable to make your own decisions.

A property and financial affairs LPA lets you choose one person or more to make decisions about money and property for you; like paying bills, collecting benefits and selling your home. This type of LPA can be used as soon as it’s registered, with your permission.

If it sounds like either of these LPAs could be useful to you, a family member or friend, contact us for further details of how we can help you to obtain them.

During the month of February, we will be offering a £75 discount per LPA to our Leeds and West Yorkshire based clients.

Call 0113 2507792 for Tom or Monika at our Yeadon office or 0113 2248080 for Charlotte or James at our Pudsey office. Alternatively, you can email info@morrishsolicitors.com (please quote ‘LPA Month Morrish’).