Making LPA (Financial)

[gadjet]

My OH has his full complement of marbles but has been completely blind for the last 10 years.
A few months ago there was a problem with his Tax Code and HMRC were not happy that I contacted them on his behalf (by letter). They suggested that maybe there ought to be a LPA(F) for him with me as the attorney. So we intend to set one up.

It occurs to me to wonder if I should consider setting up a LPA to deal with my own financials in case of sudden disabling stroke or accident. OH and I are both aged 78. Many Fools here mention setting these up for their parents, would any of the more elderly ones admit to considering a LPA for their own financials affairs ?

I am the "financial person" in our family - we have 1 son and 1 daughter (both aged 40+)and am the only one to have investments as opposed to savings.I am happy to carry on dealing with my investments (although as a deaf person I say TG for the internet as I cannot use the phone ! ) but is it time for me to think about being "sensible" even though I could then still deal with things myself and just have attornies as backup ?

[Lootman]

It occurs to me to wonder if I should consider setting up a LPA to deal with my own financials in case of sudden disabling stroke or accident. OH and I are both aged 78. Many Fools here mention setting these up for their parents, would any of the more elderly ones admit to considering a LPA for their own financials affairs ?

Yes, my mother set up an EPA giving me those powers after my father died in 1990. I did not need to use that EPA to help her until 2007, which happened to be the year when EPAs were replaced by LPAs. At that time I started to realise how useful and potentially vital these instruments were and so I set one up for myself, enabling my children to act on my behalf even though, at the time, the youngest was not yet an adult. I also wanted an EPA before they became defunct as I deemed them to be superior to LPAs, as did my solicitor.

And I was much younger than 78 then, so definitely do it.

[JohnB]

I think everyone should have LPAs, just as they should have wills. Having done ones for my Mum, I'm planning to do ones for myself now I know the process and I'm 50.

You never know when you might become unable to cope, not all onset of problems is gradual, and its one less thing to do at a stressful time.

A LPA is designed for people who can't cope, and the attorneys have a duty to not trigger them too early. I'm not convinced blindness can be considered incapacity, so I'd proceed cautiously. In all dealings with HMRC I've rung them, and got my mother to confirm verbally that I am acting for her, and then continue the conversation myself. Obviously she would sign any documents, but I assume that your OH does that even if they cannot read them, as other mechanisms are available to reveal their content.

[didds]

FWIW my wife and I have just set up LPAs for both finance and health "for each other" and we are 55.

And TBH in retrospect we should have set up EPAs once we had kids. In our early 30s. Fortunately we've obviously (!?!) not needed them.

didds

[JonE]

Many Fools here mention setting these up for their parents, would any of the more elderly ones admit to considering a LPA for their own financials affairs ?

I chose to donate an EPA shortly before that ceased to be possible as the deadline acted as a hurry-up call. If I'd missed the boat then I would certainly have donated an LPA by now - making a Will and LPAs won't kill you.

While acting as attorney I've discovered with the passage of time that some institutions and organisations now have a 'training issue' in that their staff have only a basic (but rigidly applied) understanding of LPAs and don't even know of the existence of any other sort so have refused to recognise me as an attorney - until, after a frustrating delay, they have been given a clue by their bosses. That inconvenience to your attorney should largely be avoided as they'll be using an LPA.

You could also consider the Health & Welfare LPA and an Advance Decision (made in that order) with the latter stating your own decisions on matters where you suspect your attorney may find it difficult to make the same decisions - but note differences in law if you aren't in E&W:
https://compassionindying.org.uk/

Cheers!

[Lootman]

I've discovered with the passage of time that some institutions and organisations now have a 'training issue' in that their staff have only a basic (but rigidly applied) understanding of LPAs and don't even know of the existence of any other sort

This may become an increasing problem as time passes. I had no problem with getting an EPA enacted at my mother's bank (and would have started World War Three if that had happened). But others here have stated that bank clerks were not compliant. That will only get worse as EPAs vanish and rules generally become more strict and restrictive.

If you have to hire a lawyer to actually use any kind of power of attorney then something is very wrong. The ludicrous rules about not being able to use them if the parent is not capable also do not help.

[Slarti]

Mrs S and I set up opposite and equal financial and health LPAs a year or so back with us as lead attorneys for each other and backups of our son and a nephew and niece. The nephew and niece both being accountants.

We added the extras in case all 3 of us were incapacitated in the same incident, same as we have the same people as executors in our wills.

Slarti

[modellingman]

It occurs to me to wonder if I should consider setting up a LPA to deal with my own financials in case of sudden disabling stroke or accident. OH and I are both aged 78. Many Fools here mention setting these up for their parents, would any of the more elderly ones admit to considering a LPA for their own financials affairs ?

This Fool (aged 63 and not self-described as elderly) set up "mirror" LPAs (both Financial and Health&Welfare) for self and wife, a few years ago. Two daughters are named as alternate attorneys for each of the four powers. I view it as a sensible precaution against (in the words of the Bee Gees song) "the event of something happening to me" or modellingwoman.

[Clitheroekid]

A LPA is designed for people who can't cope, and the attorneys have a duty to not trigger them too early. I'm not convinced blindness can be considered incapacity, so I'd proceed cautiously.

The good thing about LPA's is that once registered they can be used whether or not the donor has capacity. They are not by any means limited to those who can't cope, and they can be used, for example, if the donor is overseas or unavailable for any reason.

There is therefore no question of them being `triggered too early'.

The question of incapacity relates solely to mental capacity, not physical capacity, so the blindness is not an issue, though there are special provisions to deal with having the LPA signed (page 37 of this guide - https://assets.publishing.service.gov.u ... -guide.pdf)

[JohnB]

An ordinary power of attorney can be used when the donor has capacity, and is abroad etc, and resumes authority on their return. But the LPA warns attorneys that the law expects donors to make their own decisions while they can. From page 8 of the forms

Your attorneys must follow the principles of the Mental Capacity Act:
1. Your attorneys must assume that you can make your own decisions
unless it is established that you cannot do so.
2. Your attorneys must help you to make as many of your own decisions
as you can. They must take all practical steps to help you to make a
decision. They can only treat you as unable to make a decision if they
have not succeeded in helping you make a decision through those steps.
3. Your attorneys must not treat you as unable to make a decision simply
because you make an unwise decision.
4. Your attorneys must act and make decisions in your best interests when
you are unable to make a decision.
5. Before your attorneys make a decision or act for you, they must consider
whether they can make the decision or act in a way that is less restrictive
of your rights and freedom but still achieves the purpose.

Once attorneys start making decisions, then incapacity is assumed, and its hard for the donor to reassert their control. I suspect for someone who is blind, talking to HMRC can be considered (2), but decisions must be made by the donor.

BTW the forms have a choice, allowing attorneys to help from date of LPA registration, or from date of incapacity, and everyone is encouraged to do the former, presumably because of burden of proof issues for the latter.

[Clitheroekid]

BTW the forms have a choice, allowing attorneys to help from date of LPA registration, or from date of incapacity, and everyone is encouraged to do the former, presumably because of burden of proof issues for the latter.

No, the reason I encourage clients to register the LPA immediately it's been signed is to avoid delay.

Registration is currently taking 8 - 10 weeks, and if you wait till the donor loses capacity it means that you have this built in delay before you can use the LPA.

Quite often, capacity disappears all at once - for example following a stroke - and the last thing you want is to have to wait for several weeks when access to funds may be urgently required.

[JohnB]

But there is a difference to registering the LPA, so the Office of the Public Guardian know about it, and triggering it. The LPA question I mention is all about when the authority can be used after registration. Certainly there is no point paying a £82 fee, filling in the paperwork and sitting on it, as there may well be a timeout at the OPG end.

[didds]

... if you pay the £82 and dont; senbd the paperwork in by a certain time the £82 is refunded AIUI - but then you have to start again.

however, waiting to send it in acheives nothing other than a potential time gap during which in worst case scenarios it would otherwise be needed.

didds

[Clitheroekid]

But there is a difference to registering the LPA, so the Office of the Public Guardian know about it, and triggering it. The LPA question I mention is all about when the authority can be used after registration. Certainly there is no point paying a £82 fee, filling in the paperwork and sitting on it, as there may well be a timeout at the OPG end.

I'm not sure I understand what you mean by "triggering" the LPA. Unlike the old EPA, registering the LPA is not in any way linked to the donor's capacity, so the LPA can be used immediately after it's registered, whether or not the donor has capacity.

It follows that the donor can also carry on dealing with matters themselves, though if they were to do so after the LPA had been lodged with a bank I can see it causing some confusion amongst bank staff, who are for the most part pretty clueless about powers of attorney anyway.

Many LPA's are simply taken out as a form of insurance, and never actually used, but apart from saving the £82 fee I really can't see any point in going to the trouble of making one and then not registering it.

[Lootman]

It follows that the donor can also carry on dealing with matters themselves, though if they were to do so after the LPA had been lodged with a bank I can see it causing some confusion amongst bank staff, who are for the most part pretty clueless about powers of attorney anyway.

When I was acting as an attorney (for my mother using her EPA) there were no such problems with the bank. I made various withdrawals and payments on her behalf, whilst she continued to write cheques. In fact the bank gave me my own chequebook on the account so that both my mother and I could operate the account independently.

Just one anecdote, I know, and it was an EPA and not a LPA. But kudos to NatWest given that they are routinely useless in other regards.

[JohnB]

Section 5 of the LPA says

When can your attorneys make decisions?
You can allow your attorneys to make decisions:
• as soon as the LPA has been registered by the Office of the Public Guardian
• only when you don’t have mental capacity
While you have mental capacity you will be in control of all decisions
affecting you. If you choose the first option, your attorneys can only make
decisions on your behalf if you allow them to. They are responsible to you for
any decisions you let them make.
Your attorneys must always act in your best interests.
When do you want your attorneys to be able to make decisions?
(mark one only)
Help?
For help with this
section, see the
Guide, part A5.
As
 soon as my LPA has been registered
(and also when I don’t have mental capacity)
Most people choose this option because it is the most practical.

While
you still have mental capacity, your attorneys can only act with
your consent. If you later lose capacity, they can continue to act on
your behalf for all decisions covered by this LPA.

This option is useful if you are able to make your own decisions but
there’s another reason you want your attorneys to help you – for
example, if you’re away on holiday, or if you have a physical condition
that makes it difficult to visit the bank, talk on the phone or sign
documents.
Only

when I don’t have mental capacity
 careful – this can make your LPA a lot less useful. Your attorneys
Be
might be asked to prove you do not have mental capacity each time
they try to use this LPA.

There are 2 options as to when the attorneys start acting, and that decision is made before the LPA is registered. For option 1) your attorneys can only act with your consent, which means the donor retains control while they retain capacity

[gadjet]

Thank you all for your encouragement.

To those Fools who say they have already made LPAs (and presumably had them registered with OPB), how do you "prevent" your attornys taking over while you are still mentally capable, if you want to carry on doing "your own thing" such as dealing with your investment portfolio ? Or do you not have the LPAs registered yet ?

Sue

[didds]

A good question Sue ... the second part AIUI is that

* the LPA is paid for (£82 each)
* the forms filled in and sent off.
* if the forms do not get sent off in time (2 months?)
-the £82 is refunded.
- if the forms get sent in after the £82 is refunded the forms are ignored
* if the forms are sent in within the cut off time frame
- you receive a letter saying they have arrived and that all concerned parties have been notified
- if nobody then rejects the LPA application (presumably the person having the LPA made out for) after a further time frame (4 weeks we were
told but it seems its in reality somewhat longer!) the LPA becomes live.

Summary : once the payment and forms are lodged in time, and there are no objections, eventually the LPA WILL become live. There is no option AIUI to keep it on hold. Only to reject it initially then start again at some time.

didds

[JohnB]

There is an option to keep it on hold explicitly until the donor is declared to have lost capacity (by a doctor). You can choose it when submitting the LPA. But it is a burden you may not wish if overtaken by events.

Without that option, the attorneys have legal obligation not to take control from someone with capacity, and if the donor raised objections then the Office of the Public Guardian would take an interest. In the end it could end up in court, again with doctors assessing capacity, but I'd assume institutions would back off quickly before it came to that.

BTW, did you see that Buzz Aldrin is suing his children as they try to take control of his finances.

[Clitheroekid]

To those Fools who say they have already made LPAs (and presumably had them registered with OPB), how do you "prevent" your attorneys taking over while you are still mentally capable, if you want to carry on doing "your own thing" such as dealing with your investment portfolio ? Or do you not have the LPAs registered yet ?

The most obvious answer is that you should never appoint an attorney if there is the remotest prospect of them acting in this way.

From a purely practical point of view if this is a real concern you can simply tick the second box in section 5, responding to the question "When do you want your attorneys to be able to make decisions?" The answer in the second box is "Only when I don’t have mental capacity".