News

02

Feb

Apply For A Rebate: Registrants Of Lasting or Enduring Powers of Attorney

Did you apply to register a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) between 1 April 2013 and 31 March 2017?

As of 1st February 2018, it was possible for a person having applied to register an LPA - or Lasting Power of Attorney - (for both property & financial affairs and health & welfare) or EPA - or Enduring Power of Attorney - between 1st April 2013 and 31st March 2017 to claim a partial refund of the fees paid for doing so.

It also applies to those whose fees were already remitted (reduced by 50%) at the time of application, as well as repeat applications (where an additional fee was charged).

Fees recoverable depend on the application type and year in which it was made, but will range from £17 to £54.

A donor (the person having made the LPA or EPA) or indeed their attorneys may apply for the refund as can personal representatives of a donor who has subsequently passed away.

Why do I need to know? My solicitor will tell me!

Given the sums involved, the Office of the Public Guardian will not be dealing with solicitors acting on people’s behalf to claim the refunds due.

They have however made assurances that making a claim is quick and simple - and that they are readily on hand to assist - see full details visit the claim form here online via the www.gov.uk website.

21

Jan

Are Lasting Powers of Attorney still the sensible choice?

In summer 2017, controversial comments regarding Lasting Powers of Attorney by retired Senior Judge Denzil Lush proved quite the talking point.

His main gripes appeared to be that:

1. They are marketed on the basis that the alternative Deputyship application to the Court of Protection is ‘bad’, and

2. They are vulnerable to abuse; he made particular mention of this being by ‘unscrupulous’ children.

What is a Lasting Power of Attorney?

  • A Lasting Power of Attorney (LPA) is a legal document made by a person (the ‘donor’) while they are mentally able, to appoint another person or persons (the ‘attorneys’) to essentially step into their shoes and act in their affairs should they become mentally incapable.

  • There are two types; one dealing with property and financial affairs and one with health and welfare affairs.

  • An LPA can only be made while somebody has mental capacity.

  • An LPA can only be used once it is registered with the Office of the Public Guardian (https://www.gov.uk/government/organisations/office-of-the-public-guardian). Most people apply right away to ensure that they are available immediately when needed.

  • The Office of the Public Guardian typically takes 8-12 weeks to register the documents and charge £82 per document (a maximum of £164 per person).

What is a Deputyship?

Conversely:

  • An application to the Court of Protection for a Deputyship Order is instead made by the would-be deputy because the ‘donor’ lacks the mental capacity to make a valid LPA.

  • The same two types of order are available, but a health and welfare order is more difficult to obtain.

  • It can take upward of one year to obtain a Deputyship Order, just when it is already needed most.

  • Court fees for just one Deputyship Order are in the minimum sum of £400.

It is definitely fair to say that deputies are held to higher ongoing accountability in their roles, mainly by the filing of annual accounts and payment of a deputy bond which is like an insurance policy protecting the vulnerable person’s assets against possible misuse. That said, the very reason for these safeguards is the fact that that person cannot (and indeed may not have, had they undertaken an LPA while still able) choose or consent to the deputy dealing with their affairs.

Why not leave your affairs to an appointed deputy?

Cunningtons' opinion remains that the advantages of an LPA far outweigh any possible disadvantage, and the current Public Guardian, Alan Eccles, has been similarly quick to respond to former Judge Lush’s comments, pointing out that of 2.4 million registered Lasting Powers of Attorney; just 92 suspected cases of financial abuse had been bought before the Court of Protection by summer 2017. This equates to just 0.0038% of all of them and even within this small number, not all attorneys were guilty of any wrongdoing.

It is commonly assumed that a spouse or partner will be able to deal with our finances and property automatically if we should ever become unable, just as in the same way most people think that next of kin will be able to make decisions in relation to health or care needs.

This is inaccurate and loved ones often find far too late that they are unable to deal with the simplest and smallest of transactions such as paying a utility bill or even continuing to deal with a bank account held in joint names with a person who has lost mental capacity.

This Times Money article on Times Money (https://www.thetimes.co.uk/article/give-careful-consideration-to-a-power-of-attorney-2cfr6ssg5) makes mention of a gentleman unable to cancel his wife’s mobile phone contract after incurring fees of £1,000 despite her not having used it. This was because he did not have the relevant permission to look after her finances. You might agree that this is problematic enough, but consider the fact that a Deputyship application to acquire that permission would take at least 8 months. A previously made and registered LPA appointing him attorney would have allowed him to resolve the issue immediately.

Despite attorneys not being subject to quite the same rigmarole as deputies under a Court of Protection order, an LPA can be tailored to an individual’s own circumstances and include their specific preferences and/or instructions. An LPA can even direct that application to the Court of Protection is necessary for an attorney to be able to undertake a particular, probably significant, transaction. The key here, as we would argue it has always been, is to ensure that appropriate legal advice and drafting is undertaken to ensure that an LPA accurately and fully accords with the wishes of the donor.

How can Cunningtons help with LPAs?

Our Wills and Probate Department  specialises in the drafting of Lasting Powers of Attorney, meaning that they are in a key position to advise clients how best to capture their particular wishes.

Lasting Powers of Attorney are lengthy documents and contain lots of legalese which make them difficult for a lay person to navigate, let alone complete. Cunningtons will ensure that this is done properly and what is more, always takes instruction direct from the donor to guarantee as far as  possible that the documents are made free from any outside pressure or influence. This means that vital decisions regarding the possible future management of the donor's affairs are theirs - and theirs alone.

How much does a Lasting Power of Attorney cost?

Property and Financial Affairs Lasting Powers of Attorney

Without registration: £200 plus VAT

With registration: £300 plus VAT plus Office of the Public Guardian fee of £82

Health and Welfare Lasting Power of Attorney

Without registration: £200 plus VAT

With registration: £300 plus VAT plus Office of the Public Guardian fee of £82

Both Property and Financial Affairs Lasting Power of Attorney and Health and Welfare Lasting Power of Attorney

With registration: £400 plus VAT, plus two registration fees of £82

For more information please contact Bryony Wilmshurst, Wills and Probate Solicitor on 01376 567275 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

29

Sep

Changes to powers of attorney may leave older and vulnerable at risk

Local solicitor warns changes to powers of attorney may leave older and vulnerable at risk

  • Local solicitor, Bryony Wilmshurst from Cunningtons LLP issues warning following FCA’s call to turn lasting powers of attorney (LPAs) fully digital
  • Proposals would remove the need for a physical ‘wet signature’
  • Solicitors say this could lead to a drastic increase in cases of financial abuse

Local solicitor Bryony Wilmshurst from Cunningtons LLP based in Braintree, Essex has joined fellow members of Solicitors for the Elderly in warning against proposals to turn the LPA registration process fully digital.

An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about their finances and property on their behalf. Under the current process, a ‘wet signature’ – the physical signing of the document – is required by individuals who wish to register an LPA. But in a paper released on Thursday, the Financial Conduct Authority (FCA) called for a fully digital system, whereby documents could be registered completely online.

Bryony Wilmshurst said: “We are extremely concerned by the FCA’s push for fully digital powers of attorney. Although we welcome initiatives that make LPAs more accessible, the security of older and vulnerable people is paramount. Under the current system, the FCA’s vision of a secure, end-to-end digital LPA registration process is simply not possible.

“Removing the requirement of a wet signature has the potential to put thousands of people at risk of fraud and financial abuse. An LPA requires the understanding and consent of the donor, but without the witnessing of a physical signature, what is to stop a family member or friend registering a document on someone else’s behalf, perhaps even without their knowledge?

“LPAs are extremely powerful and complex documents, and the prospect of being able to take control of someone else’s bank account and even their property with the few clicks of a button is frankly reckless.”

Solicitors for the Elderly is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers, and chartered legal executives, who provide specialist legal advice for older and vulnerable people and their families. Last year, the organisation released a report raising concerns around the current online system for LPAs, which it claims already leaves older and vulnerable people open to abuse.

LPAs are processed by the Office of the Public Guardian (OPG), a public body under the Ministry of Justice. The OPG has previously considered changing the LPA application process as part of a gradual move to take all its processes online.

To find out more about LPAs go to: www.cunningtons.co.uk

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Braintree - 01376 567275

Cunningtons LLP in Great Square and Tofts Walk in Braintree, Essex, is the head office for Cunningtons Solicitors across the UK. Established in 1748, the Braintree head office in Great Square is still in its original offices. This amounts to almost 300 years of Experience and Tradition.

The Senior Partner at Cunningtons’ Braintree office is David Drake. Paul Fenton is the Joint Managing Partner. He, along with Johanna Withams are the residential conveyancing partners at the Braintree practice. They are supported by qualified Solicitors and Licenced Conveyancers.

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