“tomorrow belongs to those who plan today” Malcolm X
We provide legal peace of mind to our clients, regarding their assets. This is achieved by several different methods to match your instructions and the inherent risk.
The best way to maximise and improve the value of assets is to mitigate any tax liability with planning and regular reviews.
Whilst drafting your will we will request specific information. This so we can update you on changes effecting your arrangements, to mitigate tax payable during your lifetime and by will.
Jointly Owned Property
We recommend any jointly held property be the subject of a declaration, when it is purchased. This is especially important where the contributions are unequal or purchased by independent individuals. The declaration can cover such diverse matters as legal ownership and contributions. This will provide certainty and protect all parties in the case of separation, bankruptcy or intestacy.
One of the most cost effective tools is the Power of Attorney (POA), along with a professionally drafted will or trust.
Court of Protection
If you lose your mental capacity without putting a POA in place (or don’t have a current valid power of authority), an application to the Court of Protection will be required. It is more expensive that setting up your own power of attorney. The Court of Protection procedure is extensive and and will take months to conclude. Even the application fees are higher than registering your own custom POA. No action can be taken regarding your finances until the Court of Protection issues an order. This in itself may cause distress at an already difficult time.
Powers of Attorney (POA)
This guide is a general one for information purposes, as each power of authority is designed to meet each client’s specific requirements.
A POA is a document, which enables you (the Donor) to appoint an individual or individuals (an Attorney/s), to deal with your personal affairs. The document of authority (power) will give them legal authority to act as if they are the legal owner. They can exercise any decision but only in your best interests.
There are four types of POA, Lasting Power of Attorney, General Power of Attorney, Lasting Power of attorney (Personal Welfare) or (Property and Affairs).
Lasting Powers of Attorney (LPA)
Lasting Powers of Attorney, like their predecessors, the Enduring Powers of Attorney (EPA), will remain in force even if the Donor has lost their mental capacity to organise their personal affairs. This is in contrast to the General Powers of Attorney, where the Donor’s mental incapacity automatically revokes the power given.
LPAs will remain in force throughout the Donor’s life or until it is specifically revoked by them.
The most popular is a LPA for property and affairs. It confers authority on the Attorney to deal with the Donor’s financial affairs.
The Personal Welfare LPA covers your instructions relating to any other non financial personal matters, such as hospital treatment. It has the same broad effect and operational rules as an advanced directive or living will.
All LPA need to be registered to validate the authority given to the Attorney.
Enduring Powers of Attorney (EPA)
Any Donor who drafted an Enduring Power of Attorney, (before October 2007) can still rely on it. The Donor does not need to draft a new Lasting Power of Attorney, unless their Attorney or their authority has changed.
Enduring Powers of Attorney need to be registered if the Donor loses their mental capacity.
Frequently Asked Questions – LPAs
When does the LPA come into effect?
It can either be drafted to come into effect now or ONLY if you become mentally incapable. However either way the LPA needs to be registered.
Why do I need one?
It could be useful if you travel abroad regularly or if you suffered an injury, an accident, illness, frailty or simply advanced age.
Without an LPA, a full Court of Protection application would be required. It is a costly, slow and intrusive process. Also the person who applies may not necessarily be the person you would have chosen. So drafting your LPA while yu have the ability to do so, means you retain control.
How long is it in effect?
Until you regain your faculties, you revoke it, or your demise. The LPA must be registered in order for it to be valid and operative.
How long does the procedure take?
Once completed the LPA needs to be registered at the Court of Protection. They will then write to your designated closest relatives. After six weeks if there is no objection the LPA will be registered.
Who can be my Attorney?
Any responsible adult of good character can be an Attorney. A spouse or partner is usually the first choice, because it will ensure smooth running of your joint finances. It does not need to be a professional.
It would be preferable not to choose anyone as a Welfare Attorney who can benefit from your will. Although, clearly your spouse, partner or a close relative may be your preferred choice anyway, as they understand your wishes.
How many Attorneys can I have?
Up to four but two is a practical number. As it is a good idea to choose at least one alternative to your main Attorney wherever practical.
When can I draft one?
At anytime whilst you have the mental capacity to do so.
What if I cannot physically sign?
A designated person can sign on your behalf and at your direction before of an independent witness.
General Powers of Attorney
This General Power of Attorney (or ‘Power’) is a statutory form enabling you (the ‘Donor’) to authorise an individual or individuals (the ‘Attorney’) to act on the your behalf in relation to a specific matter. Unlike LPAs its authority is limited as it doesn’t continue if the Donor loses their capacity to manage their affairs. As such it is useful for short term projects rather than as a permanent part of your long term planning.