I have many clients who are marrying for a second or even a third time. In such cases often both parties have their own separate assets which due to their family’s situation will stay separate.
Whilst many clients do put in place Wills to protect their children from the first marriage, and through Trust arrangements protect children from both their marriages. Often they don’t put in place Lasting Powers of Attorney to assist their families with dealing with their assets whilst they are alive!
I often say to clients that Wills are for when we die, but Lasting Powers of Attorney are “during life” documents.
In many cases a person will have their own assets, in their own name. If that person is ever incapacitated during their lifetime…. the only person who is legally allowed to deal with those assets is an Attorney. Or in the worse case a Court appointed Deputy.
If this situation describes you, please call me to discuss how Lasting Powers of Attorney could be the solution!
It is important for everyone to know that Enduring Powers of Attorney are still VALID!
Although you cannot put an Enduring Power of Attorney in place now (since the law changed in 2005). This does NOT stop attorneys and donors from using these documents! Please note that the rules relating to Enduring Powers of Attorney are different from those for Lasting Powers of Attorney (the new documents).
If you or a family member has an Enduring Power of Attorney its essential that you understand how you can use this/ and how you cannot. In some cases the document has to be registered with the Office of the Public Guardian.
If you are unsure how you should use an Enduring Power of Attorney just give me a call.
Remember “if you have the capacity to do a Will, you have the capacity to appoint Attorneys”!
However, many clients decide to put in place Wills now, and think that they can decide later about Lasting Powers of Attorney. This is a big mistake.
Many people who are physically healthy decide that they will only put a Lasting Power of Attorney in place when they need it. When they become more incapacitated will be the time when they do it!
The trouble is that to put a Lasting Power of Attorney in place, is not as easy and a quick as everyone hopes. Below I have listed some of the important considerations that are involved:
• Instructions have to be taken.
• Decisions as to who will be a suitable attorney must be made.
• With 2 types of Lasting Power, it must be decided which one is needed, or are both applicable?
These are just some of the issues that have to be discussed and dealt with.
Once approved the Lasting Power must be:
• Executed by the Donor.
• The Certificate Provider must provide the necessary Certificate.
• The Attorneys must sign.
As only a fully Registered Lasting Power of Attorney can be used. The Lasting Power of Attorney must be Registered with the Office of the Public Guardian. This takes time:
• Registration takes approximately 3 months.
• Receipt of registered document is usually within 2 months of registration.
So the procedure is slow. If you therefore think putting in place a Lasting Power is a good idea – do it now! Otherwise if you wait until you really need it – the procedure could take several months when you need it the most!
Lasting Powers & Enduring Powers of Attorney – What’s the Difference?
Many people are appointed as attorneys some years before they have to act on the donor’s behalf. The reason for this is that the donor would have had to have full mental capacity to put the Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) in place.
When many years later the donor requires the attorney to assist him/her, the attorney often has little understanding of what his/her role actually is as a legally appointed attorney. If the attorney does not ask advice at this point, mistakes can happen.
The most common mistake an attorney can make is not understanding the type of document under which he/she is appointed!
• If the document was put in place before 2007 it will be an Enduring Power of Attorney (EPA). This document can be used while the donor has capacity, and whilst the donor has capacity, the EPA does NOT have to be registered.
• The donor CAN CONTINUE TO ACT before the EPA is registered.
• If however the attorneys under an EPA believe that the donor is losing, or has lost mental capacity. The document must be registered with the Office of the Public Guardian (OPG).
• When an EPA is registered, the donor CAN NO LONGER ACT at all. Everything is taken over by the attorney.
• After 2007 Lasting Powers of Attorney (LPAs) were brought in, of which there are 2 types: Property & Affairs and Welfare.
• For an LPA to be used, the document MUST BE REGISTERED with the OPG.
• Once a Property & Affairs LPA is registered the donor CAN CONTINUE TO ACT. Often this LPA is put in place as the donor ages, enabling the attorneys to assist the donor with his/her affairs.
• A Welfare LPA once registered CAN ONLY BE USED once the donor HAS LOST CAPACITY. The reason for this is that the main purpose of this LPA is that the donor has appointed attorneys to make decisions for him/her, when the donor no longer has mental capacity to make these decisions himself.
If you are an attorney and you are unsure what you should do, please contact me for advice.
Cold Weather Warning
With the weather being so bad towards the end of 2010, this has brought it home to many about how hard it has been on our parents and grandparents. Many of us could not get out of our front door!! Just think if it was bad for those of us who are young and fit, imagine what it was like for your elderly aunt?
Whilst doing a little shopping for an elderly friend or relation was helpful. Other problems have raised their heads.
It’s easy if your elderly relative lives up the road. However, for many of us (myself included) parents, grandparents, aunts and uncles live miles away. Many elderly people when the weather is bad, can’t pay bills or order supplies easily.
Many families have tried to help a relative, thinking that by picking up the phone they can organise bill paying/order food etc. Unfortunately, it is not easy because unless a Power of Attorney is in place – families often CANNOT help their own relatives.
If this winter has been difficult, it might be time that a Lasting Power of Attorney is put in place by your parents/grandparents/aunts or uncles. Once one is in place the attorney/s can sort out paperwork, deal with bills and phone up on their relative’s behalf.
Please call me so I can explain how putting in place an Attorneyship may help the whole family. If a Power already exists, it may be time to activate it.