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SOLICITOR
IN CHARGE: TOM FITZPATRICK
SIX REASONS:-
- Choosing your
own Attorneys from family, friends and professional advisers is
better than having them chosen for you. They need to be trustworthy.
- Making arrangements
for payment for care should payments be needed.
- Avoiding the
bureaucracy of the Court of Protection. It is a long winded expensive
and bureaucratic organisation whose usefulness lies in solving
disputes rather than in controlling administration.
- Making arrangements
for collection of any Attendance Allowance or other benefits.
- Allowing your
carers to concentrate on looking after you without distractions.
- Making
arrangements for the continuing prosperity of any business which
you own.
SCOPE OF
L.P.A's
L.P.A's replaced
Enduring Powers of Attorney (EPA's) on 1st October 2007.
For all their faults EPA's had the virtue of simplicity but they
were restricted to administering the patient's assets. Medical
and welfare matters remained with the next of kin, which was fine in
1985 when the Enduring Powers of Attorney Act was passed but not now
when people of all ages live together unmarried or, in the case of
same sex relationships outside a civil partnership. Spouses or
partners may want to ask each other to look after themselves and
their assets rather than distant relations.
There
are separate L.P.A's for personal welfare and property and affairs and the
patient may appoint the same (or different) attorneys for each. Both the
two L.P.A's both run to over 20 pages, so there is much thinking to be done, and
a lot of information to be pulled together and legal advice to be provided.
Assuming you have downloaded Acrobat Reader, forms are available on the website
of the Office of the Public Guardian (www.publicguardian.gov.uk).
THE DANGER
OF FRAUD
Nobody likes
handing their assets to someone else to look after. There is always
a danger that Attorneys might be tempted to use funds for purposes
which were not intended. FitzPatricks can advise you about:-
- Choosing
trustworthy attorneys.
- Steps to
be take to ensure that the L.P.A is not used until it is needed.
- Duties of
attorneys.
- Limited authority
of attorneys to use your assets to help people other than yourself.
- What family
and friends should do if attorneys abuse their authority.
THE DONOR
IN THE NURSING HOME
Sometimes, the
Donor is already in the nursing home. The initiative for the L.P.A.
will come from the family, perhaps on the advice of the nursing
home or the bank.
The solicitor
will:-
- Advise the
family (every well-intentioned family will understand this) that
the solicitor's client is the Donor, not the family.
- Visit the
Donor to be satisfied that he or she is legally capable of making
an L.P.A. (provided action is not unnecessarily delayed, this
is not usually a problem).
- Discuss with
the Donor the various options available in relation to the powers
to be given to attorneys, the extent of the property entrusted
to them, whether there is to be one attorney or more, and, if
more than one whether they should act individually or together.
Where a family
has already been administering the affairs of the Donor without
an L.P.A., the interest of the family and the Donor are likely to
be the same. When this happens the solicitors will ensure that the
visit to the nursing home is constructive and gentle.
MENTAL AND
PHYSICAL INCAPACITY
- L.P.A's come
under the Mental Capacity Act 2005. They are designed
to return to families the administration of the Donor's financial
affairs, instead of having these administered by the Office of
the Public Guardian.
- Before
exercising any power under an L.P.A, the attorneys must register the
L.P.A with
the Office of the Public Guardian. This process involves serving notice
of the registration on the Donor and next of kin. Most solicitors
have the necessary papers readily available. The purpose and effect
are not to give the Court any involvement in day-to-day matters
but to allow the Court jurisdiction if there are any disputes.
- Attorneys
may be able to exercise the authority in the event of physical
rather than mental incapacity.
ADVISING
THE ATTORNEYS
Before exercising
any power, the attorneys should consult the Donor's solicitor
to find out what they are allowed and not allowed to do under the
L.P.A and to discuss the legal responsibility for paying for care.
Does the Donor or the State pay for care? The legal responsibility will be determined at the time of going
into care, not when the L.P.A is made. The attorneys are to comply
with the Code of Practice for L.P.A's - which is nearly 300 pages
long!
RELEASING CAPITAL
Mortgaging part of your house is a heavily
marketed way of improving your income. In some cases, this may be a great
way of making life easier, safer and altogether more enjoyable. These are
excellent objectives, but they come at a price. Essentially, the scheme
involves a return of monthly income or capital in exchange for a slice of the proceeds of
sale when the house is sold, but always remember that the lender must make a
profit on the transaction.
Two warnings:-
- The monthly income payments may not be enough
if inflation sets in.
- If too much of the house is given away to the
company, there may not be enough left to allow you (or your survivor) to
move into a smaller or more practical home, should that become desirable.
If you are considering an Equity Release Scheme,
you should take advice from a Solicitor and FitzPatricks will be pleased to help
you.
"GRANNY
FLATS"
Where
"Granny" is going to live with a member of the family and
a house has to be bought or extended, a solicitor
should always advise that "Granny" and "Family"
are separately advised by different solicitors. This is because
their interests are different. "Granny" may have other
family members to consider in the Will as well as those who are providing shelter.
"Granny" may also be putting money into a combined purchase
of a family home and "Granny Flat". If relationships do
not work out "Granny" may need to be financially able
to live elsewhere. If "Granny" and "Family"
have addressed these questions in advance, a complete understanding
may be achieved instead of matters being taken for granted. In this
paragraph, "Granny" includes "Grandpa".
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