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Everyone, regardless of their age, should consider making a Lasting Power of Attorney (LPA). This is a document which appoints people to make decisions for you if you were to lose mental capacity – for example if you were to suffer brain damage in an accident or develop Alzheimer’s.
If you lose mental capacity without having an LPA in place and your affairs need to be looked after then the only option is for someone to apply to the Court of Protection for a Deputyship Order. This could be a family member, solicitor or local authority – not necessarily the person you would have chosen. This process is also more complicated, more expensive and more likely to lead to conflict than having an LPA.
Many people have been put off making an LPA because the forms are very fiddly and, if legal advice is needed, can seem quite costly.
However, the Office of the Public Guardian (OPG), the public body responsible for LPAs, has made life easier by introducing a partially-online system.
The LPA forms are, quite frankly, a faff to complete. Unused boxes need to be crossed through manually, continuation sheets need to be added, lots of people need to sign in the correct order and some signatures need to be witnessed. This means that even someone used to completing the forms has to take great pains to make sure everything is in done properly - and this takes time.
The OPG website now has a handy wizard which does most of this for you. The forms still need to be signed by human beings but the completed form comes with an automatically-generated cover sheet setting out exactly who needs to sign where and how and in what order. It even puts in the continuation sheets in the right places for you.
An LPA needs to be registered with the OPG before it can be used. The registration forms can also be filled in online – although ‘real’ signatures are still required. And thanks to all this whizzy new technology and cost savings, the registration fee has actually been reduced from £130 to £110.
Many people will be able to make their own LPA without legal advice. This would probably be the case if, for example, you are making a straightforward, non-controversial appointment of an attorney with no special or unusual wishes.
If you want your LPA to be out of the ordinary, for example if you wish to make complicated provisions for successor attorneys, it could be sensible to speak to a solicitor. Equally, if you want to include special restrictions or guidance, for example about whether your attorneys can make gifts of your money, you should probably seek legal advice.
Finally, if you are elderly or suffering from depression or other mental illness, it might be wise to ask a solicitor to help you. Although it is probably unfair to single people out in this way, there is a good legal reason. Your solicitor will keep detailed records of your wishes, which will make it harder down the line for anyone to claim that you lacked capacity and did not know what you were doing when you made your LPA.
In the future, the OPG is considering making the entire LPA process electronic – meaning that actual signatures would not be needed. It is not yet clear exactly how this would work. Presumably, this would bring the costs down even further. However, there will need to be robust safeguards in place to make sure that fraudsters are not able to take control of the finances of vulnerable people.
Next month, the Private Client team will be blogging about the difficulties and pitfalls when appointing successor attorneys in your LPA. We will be considering recent cases in this tricky area of law.
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