Making our own financial and welfare decisions and dealing with our own day to day responsibilities is something we all take for granted.
The thought of not being able to so is something we rarely consider. However, mental capacity can be lost unexpectedly, which can and does raise issues both for ourselves and our loved ones. It is therefore vital to plan ahead so that everything runs smoothly should such an unfortunate situation arise.
A Lasting Power of Attorney (LPA) puts you in the position of choosing who will look after your affairs should you become unable to do so yourself. This person – your ‘attorney’ – can be anyone you trust, such as a relative, friend or a professional. They will have the authority to take care of your property and financial decisions and / or your health and welfare.
Unfortunately, many people fail to make an LPA when they are fit and well and able to do so. An LPA can only be made whilst there is sufficient mental capacity. If a loved one loses capacity and there is no LPA in place, your only option will be to apply to the Court of Protection to be appointed Deputy, which is a long and expensive process. This is precisely why at JCP we believe that preparing an LPA is equally as important as making a will. As well as allowing you to maintain control over who makes decisions on your behalf, it can provide stability and reassurance for your loved ones.
Lasting Powers of Attorney
No one likes to think about what would happen if we lost capacity unexpectedly. Sadly, the unexpected does happen which can cause problems for you and your loved ones. It is therefore important to plan ahead in order to ensure things run smoothly should this unfortunate situation arise. Preparing for the future whilst we are fit and well is something we should all consider.
By making a Lasting Power of Attorney (LPA) you are able to choose someone to look after your affairs, should you become incapable of doing so yourself. This person is known as an Attorney. You can choose to appoint a friend, relative or a professional to act as your Attorney. An Attorney is granted authority to deal with your property and financial decisions and/or your health and welfare. The role carries considerable responsibility and as such, it is crucial your Attorney is someone you trust to act in your best interests.
Unfortunately, we find that many of our clients fail to plan ahead whilst they are fit and well and only start thinking about a LPA when it is too late.
If a person has lost capacity and does not have a LPA in place, matters become more difficult. In this instance, the only option available is to apply to the Court of Protection to be appointed as a Deputy. This can be a very long and expensive process, whereas a LPA can be prepared quickly and is considerably cheaper.
Our team believe that preparing a LPA is equally as important as preparing a Will. Not only does it allow you to maintain control over who makes decisions on your behalf, it can provide peace of mind and stability for you and your loved ones.
Lasting Powers of Attorney For Business People
This is a special Lasting Power of Attorney (LPA) needed for a businessman or woman in relation to his/her property and affairs as opposed to private property and affairs.
The answer depends on the business. A sole trader, for example, may not need anything but a general authority to his Attorneys under an LPA.
However, the position is not the same in relation to partners in a business nor in relation to a shareholder and director in a company such as a family company.
In a partnership, the partnership agreement should be considered and may need amendment or indeed the creation of one if there is not one in existence. If not, it is possible that under the Partnership Act 1890 the partnership could be deemed dissolved where one partner is incapable of performing his part of the partnership contract.
In relation to a family company where the donor is the effective owner and director, the position is that the director’s duties cannot be delegated under an LPA unless the Articles of Association of that company makes special provision for this. It is most likely that the Articles of Association of a company will not allow such delegation and the position should be checked and the Articles of Association amended if necessary.
It is advisable for all persons with business interests to have an LPA covering their property and financial affairs, but it should not be assumed that a general authority LPA will satisfy particular circumstances of the donor.