What is a power of attorney?
Why do I need a Lasting Power of Attorney?
What is involved in obtaining a Lasting Power of Attorney?
What is the Office of the Public Guardian?
What happens if someone loses their mental faculties and has no Lasting Power of Attorney?
How do I apply for deputyship?
What is a guarantee bond?
Whats the difference between a Lasting Power of Attorney: Property and Assets and a Lasting Power of Attorney: Personal Welfare?
Can my attorneys use my Lasting Power of Attorney before I lose my mental faculties?

 

 

 

 

What is a power of attorney?

A power of attorney gives someone the legal authority to manage another person’s property and affairs or health and welfare. The chosen attorney(s) must act in the best interests of the person who made the power of attorney (the donor).

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Why do I need a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) will give your chosen attorney(s) the power to deal with your finances and/or personal welfare. If you lose your mental faculties, or are out of the country or in hospital, you may need someone who is able to administer your affairs on your behalf. Provided you have a registered LPA, your attorney(s) will be able to access your bank account to pay for things such as care home fees and other bills, which they would not otherwise be able to do without applying for deputyship via the Court of Protection.

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What is involved in obtaining a Lasting Power of Attorney?

When applying to register a Lasting Power of Attorney (LPA), there are 3 sets of documents you need to complete. These are:

1. The LPA form;
2. Form LPA001 – notice of intention to apply for a LPA; and
3. Form LPA002 – application to register the LPA.

The LPA itself names your attorney(s), states both your and your attorney(s)’ personal details, says whether your attorney(s) are to act independently and/or together, and gives any guidance to the attorneys, including any restrictions on them that you may wish to put in place. You will need a certificate provider to certify that you have all of your mental faculties at the time you sign the LPA (this can be a solicitor). You also need to give notice to someone independent of you and your attorneys, who will alert the Office of the Public Guardian (OPG) if there is anything suspicious about the application.

The application must be sent to the OPG for registration, along with a registration fee. Your attorney(s) cannot use the LPA until it has been registered. The registration process can take a few months, so it is best to register your LPA sooner rather than later.



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What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) is an agency with responsibilities that extend across England and Wales (separate arrangements exist for Scotland and for Northern Ireland).

The OPG supports the Public Guardian in the registration of Lasting Powers of Attorney (LPAs) and Enduring Powers of Attorney (which were replaced by LPAs, but those in existence may still be used if they were made and signed before October 2007), as well as the supervision of deputies appointed by the Court of Protection.

The OPG also helps attorneys and deputies to carry out their duties, and protects people who lack the mental capacity to make decisions for themselves.

The OPG works closely with other organisations to ensure that any allegations of abuse are fully investigated and acted on.

The OPG also has responsibility for mental capacity policy, and provides guidance to public, legal and health professionals.

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What happens if someone loses their mental faculties and has no Lasting Power of Attorney?

A deputyship order must be applied for if someone has lost their mental faculties and does not have a Lasting Power of Attorney. A deputyship order will allow the person appointed as deputy to deal with the person’s financial affairs, take care of their medical issues and act on his or her behalf in certain legal matters as well as many other issues that may require their involvement. The deputy must make decisions as though he or she were the person who is under the deputyship order.

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How do I apply for deputyship?

You must make an application to the Court of Protection. The application is usually a paper based one, although the Court of Protection does have the power to make any applicants appear before it. You must complete various forms which constitute the application and pay a fee. The Court of Protection will ask you to apply for a guarantee bond, which will cover any possible costs incurred if the deputy misuses any funds.

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What is a guarantee bond?

A guarantee bond is an insurance policy which you must purchase before being awarded a deputyship order. The cost of the bond is on a sliding scale and depends on the value of the estate. The bond will cover the costs of the deputy acting fraudulently – i.e. using the estate’s assets for his or her own purposes or absconding with the entirety of the estate.

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What is the difference between a Lasting Power of Attorney: Property and Financial Affairs and a Lasting Power of Attorney: Health and Personal Welfare?

A Lasting Power of Attorney (LPA) Property and Financial Affairs allows the attorneys to administer the financial affairs of the donor – e.g. pay bills, transfer money from and to accounts, sell property etc. A LPA Health and Personal Welfare allows the attorneys to make decisions concerning medical treatment and care on the donor’s behalf.

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Can my attorneys use my Lasting Power of Attorney before I lose my mental faculties?

Yes. The Lasting Power of Attorney (LPA) is ‘live’ from the time it is registered. If you do not wish your attorneys to use the LPA unless you have lost your mental faculties, you may place a restriction to this effect in the LPA.

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Davies is the trading name of Davies Solicitors Limited (registration number 5699025). The registered office address is 30 Woollards Lane, Great Shelford, Cambridge CB22 5LZ,
and Richard Davies is the Director. We are regulated by the Solicitors Regulations Authority (reference number 439685).
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