Enduring Power of Attorney query.

immy1

Hi

I am looking for advice after a visit to a solicitor to update our will last week.  We also had a discussion regarding that we  might want to consider taking out an LPA to replace our old EPA. We were advised that as it stands now,  if I were to die now or lose mental capacity then both my husband and my son who are the attorneys would have joint control over finances.  We were very suprised by this as we assumed that if my spouse was in sound mind then he would be able to deal solely with our money but it was made clear by the solicitor that he would have to consult with my son jointly before making any financial decisions. He wouldn't want to do that as while he is capable he would want the ability to do what he wants with our money.  To replace the EPA with an LPA would cost £1288.00 for us both and up to 3 attorneys so it's quite an expense.  Has anyone come across this before with the old EPAS. Grateful for any advice. Thanks

Robin9

immy1 said:

.............. if I were to die now ......................

I think you misheard this -   I believe EPA ceases on death. then your will takes over (I trust you, your husband and son have your own wills)

immy1

Hi Robin9. Thanks for the response.  I think I will go back and check again with the solicitor as when she said my son would have joint control over finance decisions with the spouse I told her I was amazed at this and asked her to confirm it again which she did. Maybe she has got confused as she was a trainee. She was definitely qualified to update our wills but maybe not setting up POA's?  I do think that when you receive copy wills, POA's and other legal documents they are worded in such a way that it is hard to make complete sense of exactly what they are saying.  

Keep_pedalling

You do not need a solicitor to make LPAs, you can simply do them yourselves and just pay the £85 fee to register each LPA. You can make your spouse and son attorneys with the option to to act jointly and severally so that either can act alone as required. Alternatively you can make your spouse the main attorney and your son as back-up.

immy1

Thanks! I did'nt know we could make an LPA without a solicitor.  If we went ahead with this ourselves would we need to cancel the EPA first.?

Robin9

My wife and I did the LPA's ourselves  -  just patiently work your way through the forms

But do use a solicitor for your wills - he/she will go through the what/if scenarios you hadn't thought of

Keep_pedalling

immy1 said:

Thanks! I did'nt know we could make an LPA without a solicitor.  If we went ahead with this ourselves would we need to cancel the EPA first.?

No, your LPAs will supersede the EPAs but will take several weeks to be registered with the OPG. 

You EPAs will not be registers with the OPG as they only need to be registered when you lose mental capacity. 

DairyQueen

Keep_pedalling said:

You do not need a solicitor to make LPAs, you can simply do them yourselves and just pay the £85 fee to register each LPA. You can make your spouse and son attorneys with the option to to act jointly and severally so that either can act alone as required. Alternatively you can make your spouse the main attorney and your son as back-up.

Minor point.... the fee is £82 for each LPA.

For information for the OP. Separate LPAs are required for each of... a) Property and Finance, b) Health and Welfare.

My parents have just completed their applications. Each have both LPAs. Total cost for a couple = £328.

The process is straightforward but requires care in ensuring parties sign in the correct order/place.

OH and I completed our forms last year and, unless timescales have increased, expect to wait around 3 months for the applications to be processed.

Ms_Chocaholic

LPAs are fairly easy to do yourself, if there is anything that is difficult is just double checking that you get the signatures done in the correct order.  As stated above, they are very easy to do yourself, register on the Government website - the website allows you to create a draft LPA and then delete so you can go through the form online several times if you wish, delete them and start again and then printing the final version.

Do come back here if you need any help with completing the forms, many of us have done them ourselves with no need for a solicitor.

Malthusian

We were advised that as it stands now,  if I were to die now or lose mental capacity then both my husband and my son who are the attorneys would have joint control over finances.  We were very suprised by this as we assumed that if my spouse was in sound mind then he would be able to deal solely with our money but it was made clear by the solicitor that he would have to consult with my son jointly before making any financial decisions.

Both the old Enduring Powers of Attorney and the new Lasting Powers of Attorney can be on a "joint and several" basis (meaning only one attorney is required to sign anything) or "joint only" basis (meaning all attorneys have to sign everything).

Making a "joint only" POA is a schoolboy error. It means additional hassle every time something needs to be done and the advantages of "joint only" over "joint and several" are nil.

Your solicitor seems to be saying that your existing EPOAs are "joint only" which is another good reason to replace them.

I think I will go back and check again with the solicitor as when she said my son would have joint control over finance decisions with the spouse I told her I was amazed at this and asked her to confirm it again which she did.

That is the point of making someone your attorney. If you didn't actually want your son to be your attorney that would be another reason to replace the POA.

However bear in mind that if you lost capacity, and your husband was dead, had also lost capacity or was unwilling to act, and your son is "capable" as you said, it is perfectly possible that the job might fall to your son. Without a valid lasting power of attorney in place the son would have to apply for deputyship from the Court of Protection, which is much longer, more bureaucratic and more expensive than having an EPOA / LPOA.

Being appointed Attorney does not give you "the ability to do what he wants with our money". Attorneys are legally required to act in the donor's interest.

immy1

Hi Malthusan and thanks for your detailed response.  What we are trying to achieve is in the event I died and my husband was still in sound mind then in that instance he would want full say over our finances and he would not want to have to ask our son if he wanted to eg buy a car.  However, in the event that I died and he lived but lost mental capacity then we would want him to have control over the finances. Regarding decisions on health and welfare (if we were not capable) then we would want our son and one other person to have the joint ability to make decisions on this. Basically we just don't how to complete the new LPOA to specify all this?