Once the LPA has been registered, it will continue even after the Donor loses capacity and will end upon the Donor’s death. However, there are a few scenarios where the LPA can be terminated before the Donor dies.
Many people confuse a Lasting Power of Attorney with a Will – or believe that having a Will automatically qualifies them for some type of power of attorney. While a Will safeguards your beneficiaries after your death, a Lasting Power of Attorney safeguards your personal interests throughout your life – up to the point of death. When you die, the power of attorney terminates and your Will takes precedence. There is no duplication and as such it is prudent to have both.
In essence, a Lasting Power of Attorney empowers someone you trust to act on your behalf and in your best interests while you are still alive. When you require someone to act on your behalf, obtaining a Lasting Power of Attorney is usually too late.
Appointing someone as your agent to manage your affairs and make critical decisions on your behalf is referred to as appointing them power of attorney. This is accomplished by utilising a legally binding document. Attorney refers to the designated individual. While powers of attorney have a number of forms, they all share two critical
- The individual appointing the attorney must execute the power of attorney document while fully capable of comprehending what they are agreeing to.
- The individual’s power of attorney terminates upon his or her death (or when specified in the document)
We examine these issues in greater detail in this article, Is lasting power of attorney valid after death. We are a multidisciplinary law firm with offices in Hale, South Manchester, and London. We are easily accessible to our clients throughout the country. Each power of attorney that we create for our clients is drafted by a highly qualified and experienced solicitor.
It is possible to create your own Power of Attorney, and numerous websites make this possible. However, keep in mind that the consequences of drafting a Power of Attorney can be far-reaching, with severe consequences if done incorrectly. This is why we strongly advise you to use the services of an experienced solicitor.
Please click here to find out more about our Wills and Lasting Power of Attorney Services.
Free Initial Telephone Discussion
For a free initial discussion on how we can help you deal with the legal implications of creating a lasting power of attorney, get in touch with us today. We are also experienced in dealing with all aspects of Wills and Probate and we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.
What is the process when the donor passes away?
The listed attorneys must notify the Office of the Public Guardian of the decedent’s death and give the original LPA document, all certified copies of the LPA, and a copy of the death certificate.
Due to the fact that an LPA is no longer legal once the donor dies, the attorney is unable to manage the donor’s affairs. Keeping this in mind, it’s critical that you also have a Will in place to ensure that your possessions are properly distributed to people you desire to inherit.
What happens If the attorney passes away?
If the named attorney predeceases the grantor of the LPA, the next steps will rely on the terms of the original LPA document. Numerous scenarios are possible.
If a successor attorney is named in the LPA, this trusted individual may assume the place of the deceased attorney.
However, if the LPA names only one attorney and no replacement attorneys are named, the LPA will become invalid upon the death of that attorney. In this case, the donor will need to create a new LPA, assuming they retain mental ability.
If many attorneys are appointed and the LPA says that they can make independent decisions, the LPA remains valid.
However, if numerous attorneys are appointed but the LPA specifies that they may only make joint decisions, the LPA may become invalid. This is because the surviving attorneys may be unable to make autonomous decisions without the assistance of the deceased counsel.
Is it worthwhile to have a lasting power of attorney?
While creating a Will is necessary to protect your assets in the case of your death, it may be just as critical to establish a lasting power of attorney (LPA) to guarantee that your finances are managed in your best interests while you are still living.
Assume you’re 80 years old, fit, healthy, and self-sufficient. You have saved £20,000 but no life insurance and have drafted a Will leaving everything to your kids. Are you still in need of an LPA? Yes – because a Will only affects your estate after you die, it is critical that you establish a lasing power of attorney to ensure that your finances are handled properly if you ever lose the mental capacity to make key decisions on your own.
It’s natural to put off establishing a lasting power of attorney, and many individuals downplay its relevance, particularly because no one like the prospect of being unable to manage their own affairs. Unfortunately, as we age, our likelihood of needing assistance with anything from finances to daily care increases, which is why an LPA can be crucial to preserving a high quality of life.
Situations where you might need to appoint a Power of Attorney
There are various reasons why you may require assistance in making decisions or acting on your behalf from another person:
- This could be a temporary situation, such as being hospitalised and requiring assistance with daily duties such as bill payment.
- If you have been diagnosed with dementia and may gradually lose the ability to make your own decisions, for example, you may need to make longer-term arrangements.
Is it possible to end an LPA early?
There are a number of scenarios that may arise where ending an LPA early might be appropriate. This could include:
- The Donor may have had a falling out with one or more of the Attorneys. In this scenario, the Donor must formally ‘revoke’ the LPA and notify the Public Guardian’s Office (OPG). It is critical to retrieve any copies of the LPA held by the ‘removed’ Attorney and, if there are no remaining Attorneys, the Donor should also create a new LPA at the same time. Simply executing a new LPA does not remove any prior Powers of Attorney.
- Certain individuals are prohibited from becoming attorneys in the first place, such as those who are bankrupt or subject to a Debt Relief Order. As a result, if an Attorney (for Property and Affairs) goes bankrupt following their appointment, their appointment terminates. If there are multiple Attorneys but just one gets bankrupt, the entire LPA may become null and void. This occurs if the Attorneys are appointed together rather than jointly and severally.
- An Attorney may choose to resign their appointment, i.e. they disclaim it. They are not required to provide a justification, but they must tell the OPG. The identical issue as previously discussed will arise if more than one Attorney is appointed jointly.
- Obviously, if the Attorney loses the ability to manage their own affairs, they cannot continue to operate as an Attorney.
- If the Attorney is married to (or in a Civil Partnership with) the Donor and they later divorce, the Attorney will be unable to act unless the LPA permits this.
Understanding Power of Attorney – what does “mental capacity” mean?
Mental capacity is defined as the ability to make or communicate precise choices when the situation warrants it. Mental capacity necessitates a comprehension of the circumstance at hand, the justification for the decision, and the expected outcome of the choice.
Certain individuals will be able to make decisions in some circumstances but not in others. For example, they may be capable of selecting a dinner menu but incapable of comprehending or arranging for home insurance. Alternatively, their decision-making capacity may alter everyday.
Slower comprehension or communication does not necessarily reflect a mental capacity disadvantage. For example, dementia does not always reflect an individual’s inability to make autonomous choices. Where a person has trouble communicating a decision, every effort should be taken to eliminate such barriers and support the person in making their own.
Are there different types of Power of Attorney?
There are several different types of powers of attorney, and you can establish more than one:
Ordinary power of attorney
This includes financial decisions and remains valid as long as mental capacity is retained. It is appropriate if you require coverage for a limited period of time (hospital stay or vacation), have difficulty getting around, or wish for someone to act on your behalf.
Enduring powers of attorney (EPA)
In October 2007, EPAs were phased out and replaced by LPAs. However, if an EPA was created and signed prior to 1 October 2007, it should remain valid. An EPA governs property and financial decisions and takes effect if you lose mental capacity or wish for someone to act on your behalf.
Lasting power of attorney (LPA)
A lasting power of attorney (LPA) is a legal document that empowers someone you trust, your attorney, to make decisions on your behalf if you ever lose mental capacity or no longer wish to make decisions for yourself. An LPA safeguards your financial affairs, as well as your health and care. It becomes effective if you lose mental capacity or no longer desire to make your own choices. If you wish to ensure you are protected in the future, you would establish an LPA.
LPAs are classified into two types:
- LPA used to make financial decisions
- LPA for the purpose of making health and care decisions.
LPA used to make financial decisions
A financial LPA can be used while you retain mental capacity or you can specify that it should take effect only if you lose capacity.
An LPA for financial decisions may include the following:
- purchasing and selling real estate
- mortgage repayment
- investing capital
- settling accounts
- arranging for property repairs.
You can restrict your attorney’s decision-making authority or empower them to make all decisions on your behalf.
If you’re establishing an LPA to handle financial decisions, your attorney must maintain accounts and keep their funds separate from yours. You can request regular updates on how much money is spent and how much money is available. If you lose mental capacity, these details can be communicated to your solicitor or a family member. This adds an additional layer of defence.
LPA used for health and care decisions
This covers health and care decisions and is only applicable once mental capacity has been lost. In general, an attorney can make decisions about the following:
- where you ought to reside
- your medical treatment
- what you should eat
- who you should contact
- which social activities you should participate in.
Additionally, you can give your attorney special permission to make life-saving treatment decisions.
How we can help
We have a proven track-record of helping clients create a lasting power of attorney. This also includes all of the different types, even if you need more than one. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of creating a Lasting Power of Attorney. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
Comments are closed.
