Lasting Power Attorney: Property and Finance

theepw9

Hello everyone,

I would really appreciate some advice here as currently my husband and I are in the process of filling out the LPA application forms on the .gov website.  We are both setting up LPA for Property and Finance so that if I lost capacity, my husband would be able to make financial/property decisions on my behalf and vice versa.

I just have a few questions, that I would be grateful for an answer to:

1) There is an option to set 'preferences' and 'instructions' on the LPA.  I know that this is not strictly a necessary requirement for the form and I do not have any particular specific preferences or instructions.  All I really want, is that if I were to lose capacity, I would want my husband to be able to have access to my accounts in order to pay bills / spending / care needs etc, with the minimal amount of fuss and resistance from banks etc.  However, my question is, do I actually need to specify this in the 'preferences' of the LPA?  Or is this actually implied via having the LPA in the first place?  I am assuming that if I have someone who is my LPA for finance and property, they would be able to have a right to access my account, through the bank, to pay for things such as bills/care needs etc.  I am just not sure if I need actually specify this in the 'preferences' section of the LPA ?

2) Lastly, because my husband and I are both doing an LPA application each; we are both putting down 'replacements' for the LPA, i.e. if we couldn't fulfil the needs of the LPA if the time came.  For example, my replacement is my brother (if my husband lost capacity or couldn't be the LPA if the time arose), whereas my husband has chosen his replacement as his nephew (if I were to lose capacity and could not longer be the LPA)... However, I am just wondering what would happen if my husband and I BOTH lost capacity at the same time? (I know this is very unlikely, but still theoretically possible).  Would my Brother and my husband's Nephew essentially have to agree how best to manage the finances and property situation together?  Or would they just manage each persons finances individually?  I hope I've made sense there!

Apologies if these are daft questions; I'd be most grateful for your advice here.

kaysdee

1. I have LPA for both my husband and son. We left preferences and instructions blank throughout and simply did the signatures. There is an expectation that the attorney only acts in the best interests of the donor, and given the close relationships involved and knowing exactly what they’d want to happen, we felt specifying preferences had the potential to be misinterpreted or create unintentional barriers. By having nothing specified, the attorney can then work exactly as you intend and be able to act as if they were the donor in all property and financial management, with the exception of wills. I’d recommend making wills if you don’t already have them. You have the option to register the LPA immediately, or only when the donor has lost capacity. We opted to register immediately so that any errors in the paperwork could be identified (and I’m glad I did as we missed one of the signatures in the first application for my son, so it was rejected), but I haven’t actually used the LPA for either yet.

2. Again, the outcome would be as you’ve detailed. The replacement attorneys would act on behalf of you and your husband. Each would need to act in the best interests of the donor. I suppose technically there could be conflict if they didn’t agree on whether an action is in each of your separate best interests, but it depends on how your finances are set up, joint, single accounts, etc, and how you own your home. I would imagine your interests are closely aligned anyway so I wouldn’t worry too much as you’re choosing your replacements based on trust. It’s not necessary, but would be a good idea to talk to brother/nephew to outline what you’d like to happen.

Registering my husband’s LPA took 20 weeks last year but my son’s has been faster just recently at 12 weeks.

Albermarle

 You have the option to register the LPA immediately, or only when the donor has lost capacity. We opted to register immediately so that any errors in the paperwork could be identified (and I’m glad I did as we missed one of the signatures in the first application for my son, so it was rejected), but I haven’t actually used the LPA for either yet.

Not sure this is quite correct, although I am not 100% sure.

When you fill in the LPA info on line, pay your £82 and then get it signed, I think then you are normally supposed to send it off to be registered. I do not think you can wait until later when the donor is mentally incapacitated, but I might be wrong. In any case as you say best to register it as any mistakes will cause problems later on.

What you do have a choice is whether to activate the LPA or not. You can do this within a year of the LPA being registered ( they supply an activation code that lasts 12 months) or you can wait until it is needed. I do not think it actually maters that much either way.

Savvy_Sue

Albermarle said:

 You have the option to register the LPA immediately, or only when the donor has lost capacity. We opted to register immediately so that any errors in the paperwork could be identified (and I’m glad I did as we missed one of the signatures in the first application for my son, so it was rejected), but I haven’t actually used the LPA for either yet.

Not sure this is quite correct, although I am not 100% sure.

When you fill in the LPA info on line, pay your £82 and then get it signed, I think then you are normally supposed to send it off to be registered. I do not think you can wait until later when the donor is mentally incapacitated, but I might be wrong. In any case as you say best to register it as any mistakes will cause problems later on.

What you do have a choice is whether to activate the LPA or not. You can do this within a year of the LPA being registered ( they supply an activation code that lasts 12 months) or you can wait until it is needed. I do not think it actually maters that much either way.

I think you CAN wait to register it, but that is not advised, because of the risk of it being rejected for some reason. If you wait until it's needed to register it, then it may not be possible to remedy the defect, and that's definitely NOT the position you want to be in. 

I remember our solicitor telling us we could either register it, or not, as we wished, but they recommended registering it immediately. 

Albermarle

Savvy_Sue said:

Albermarle said:

 You have the option to register the LPA immediately, or only when the donor has lost capacity. We opted to register immediately so that any errors in the paperwork could be identified (and I’m glad I did as we missed one of the signatures in the first application for my son, so it was rejected), but I haven’t actually used the LPA for either yet.

Not sure this is quite correct, although I am not 100% sure.

When you fill in the LPA info on line, pay your £82 and then get it signed, I think then you are normally supposed to send it off to be registered. I do not think you can wait until later when the donor is mentally incapacitated, but I might be wrong. In any case as you say best to register it as any mistakes will cause problems later on.

What you do have a choice is whether to activate the LPA or not. You can do this within a year of the LPA being registered ( they supply an activation code that lasts 12 months) or you can wait until it is needed. I do not think it actually maters that much either way.

I think you CAN wait to register it, but that is not advised, because of the risk of it being rejected for some reason. If you wait until it's needed to register it, then it may not be possible to remedy the defect, and that's definitely NOT the position you want to be in. 

I remember our solicitor telling us we could either register it, or not, as we wished, but they recommended registering it immediately. 

Maybe it depends how it is filled in.
If I remember correctly if you fill one in on line and pay the £82. Then if you do not send it off signed within a period of time, the whole application is cancelled and your money refunded. So you are basically forced to get it registered as far as I can see, otherwise you have to start the process again from scratch.
Maybe if it is done off line, by you or a solicitor, there is the possibility of sitting on it ( but not recommended)