Top 10 Reasons to Seek Legal Assistance When Preparing Lasting Powers of Attorney
8 December 2020 by Amy Burton
Whether they will be for yourself, or for a family member or friend, you may be weighing up the pros and cons of the various ways in which to prepare Lasting Powers of Attorney (LPAs).
We have summarised below the top 10 reasons why seeking legal assistance will stand you in better stead, both in terms of the process itself and also taking into consideration various longevity factors, to make sure the LPAs that are prepared will be suitable for what you might need in the future.
1. Your Choice of Attorneys
Whilst this can be straightforward, in a large percentage of cases, there can be a number of considerations as to who you will appoint as your attorneys, including who you feel is suitable to act as your replacement attorneys. There are numerous combinations as to the options available here, particularly when looking at the various ways in which you are able to appoint your attorneys. LPAs allow you to appoint your attorneys in one of three ways, including ‘jointly’ and ‘jointly and severally’. There are significant consequences which must be discussed if you are considering a ‘joint’ appointment, which we will discuss with you.
Likewise, if you want your attorneys to be able to act independently of each other, ‘jointly and severally’, it is dangerous to assume that your replacement attorneys would also have the automatic right for their appointment to operate in the same manner. We will guide you through the additional documentation that needs to be prepared in this regard.
You also have the option of appointing us as one of your financial attorneys, if you feel that your first choice attorney will need assistance or if you do not feel there is anyone you can trust to act on your behalf. We have years of experience of acting for our clients in this manner and can discuss this with you in detail if it is something you are considering.
2. Guidance for Attorneys
As part of the process of preparing your LPAs, we contact your attorneys and replacement attorneys. At this stage, we generally provide them with information for them to retain for the future as to how to act as an attorney, including guidance as to what they can and cannot do when acting as your attorney.
It is a huge responsibility to act as an attorney and we feel that by providing them with this information at the outset, it provides the framework to allow questions to be raised at that point. This negates the risk of your attorney needing to act for you in the future and feeling completely overwhelmed as to what needs to be done and what they need to be aware of.
3. Preferences and Instructions
This is an incredibly important part of the LPAs. Whilst any recorded ‘Preferences’ are just that, written non-binding guidance for your attorneys, particular care has to be paid when inserting any ‘Instructions’, which are legally binding. The risk here is two-fold.
Firstly, if you include wording that is ambiguous in any way, you either risk the Office of the Public Guardian (OPG) (the official court body that administers LPAs) rejecting the wording at the point of registration, or organisations refusing to accept the wording if they do not feel that it covers a particular situation. Whilst at the very least this can have cost implications if an application has to be resubmitted (assuming you still have capacity to prepare an LPA), more importantly, you may be left without the protection you were trying to include.
Secondly, a bigger problem could present itself in the future if there is a lack of particular wording in this section. This is something we guide you through, using our wealth of knowledge and experience in drafting such instructions. Over the years, various issues with LPAs have presented themselves, following issues raised by both banks and the courts. We make sure that the appropriate wording is included in this section to negate any issues in the future.
4. Certificate Provider
As part of the process, someone has to be named as a Certificate Provider, which in short is someone who can legally certify that you have capacity to prepare the document and are appointing attorneys of your own free choice.
The OPG are very strict in their enforcement as to who can act as a Certificate Provider, as for obvious reasons that person has to be outside of your family circle. We will generally act as your Certificate Provider and therefore will stand to confirm our position as to your capacity to the OPG if questioned at any point. If for any reason we are unable to act as your Certificate Provider, which is often the case if you are a new client and we cannot arrange a face to face meeting with you, we will make sure we discuss alternative and suitable options with you.
5. Business/Company Matters
If you run a business or own shares in a company and want to make sure that someone can continue to manage your duties if you were not able to (whether temporarily or indefinitely), then we can discuss the numerous options that are available to you.
Changes to the law a number of years ago made it nigh-impossible for a director to be removed by virtue of their lack of mental capacity. This only heightened the need for LPAs to be in place to cover any business interests.
Likewise, such considerations have to be made not only when looking at long term issues such as dementia, but also when considering what would happen if you were, for example, on holiday and an urgent business matter needed dealing with.
We will make sure your business interests are protected and, if this raises any complex matters, we can refer to our Corporate & Commercial team to ensure that every eventuality has been covered.
6. Preventing Your Application Being Rejected
There are dozens of reasons why the OPG might simply reject your application to register your LPA. If they do this, it is quite common for them to advise that the entire LPA has to be resubmitted and a new court fee paid. Due to the very strict order in which an LPA must be executed by all parties, it is very rare that you will be given the opportunity to rectify any issues.
Being fully aware of these common reasons for rejection, we will ensure that your LPAs do not fall foul of any of these reasons, saving the cost of repeat court fees.
7. Exemption or Remission of the Court Fee
Depending on your financial circumstances, we can advise you as to whether you will be eligible for an exemption or remission (reduction) of the court registration fee.
If you are, then we will guide you through this process and ensure that the application is submitted with the correct supporting evidence and forms.
8. Free Storage of Your LPAs
Once your LPAs have been registered with the OPG (or your signed LPAs if you choose not to register them), we offer free, secure, storage of your LPAs upon completion. You will be provided with a copy of the registered LPAs for your reference, whilst knowing that the originals are being securely stored on your behalf.
If you needed further copies or certified copies in the future, then we can provide these easily if we are storing the originals LPAs for you.
If at any stage we are contacted by your attorneys to request either the original LPAs or certified copies of the same, we will not release these to them without confirmation from either yourself or, depending on the circumstances, a medical professional confirming that you have lost mental capacity.
By safeguarding your LPAs in this manner, you can be assured that your attorneys will not be able to access or manage your affairs without either a) your knowledge and consent or b) the appropriate confirmation from a medical professional.
We will also be able to provide your attorneys with any assistance that they might require at that stage, including signposting them to accountants or independent financial advisers if they need financial guidance.
10. A Holistic Approach
When we discuss LPAs with you, it gives us a good insight into your personal situation. This can allow us to discuss and recommend any other matters that you should consider, including the preparation of Wills, shareholder/partnership agreements, cohabitation agreements, and property ownership issues.
Having a duty to act in your best interests at all times, it is vitally important that we look at your overall circumstances and not just purely one aspect. We can discuss any concerns that you may have and have a wealth of experts to refer you to if needed.
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