Joseph Caulfield

29/04/2022

5 Reasons why you should you get an LPA:

1. Sadly, if you lose your mental capacity, there is no automatic legal right for family or friends to step in and make decisions for you. An LPA is the best way to protect you legally.
2. If you lose mental capacity without making an LPA, anyone wishing to make decisions for you will need to apply to the Court of Protection for a deputyship order. This is a more expensive process and is more time consuming and complex.
3. It only costs £82 to register one LPA, whereas it costs £371 to make an application to the Court of Protection. If the courts lists a hearing, there is a further fee of £494. It pays to get an LPA to cover you in case of a worst case scenario.
4. If you make an LPA, you decide who your attorney or attorneys will be. These are the people who will make decisions for you. Without an LPA, the Court of protection gets to choose who makes decisions for you instead and this could be a stranger.
5. LPA's offer so much flexibility and choice. You can leave your attorneys detailed guidance on how they should act should they need to manage your affairs. This means you have a semblance of control.

Don't leave it too late. Make sure you get a lasting power of attorney as soon as possible. Please feel free to get in touch either by emailing me on [email protected] or calling me on 07719162106.

22/04/2022

What is the difference between an enduring power of attorney (EPA) and a lasting power of attorney (LPA)?

EPA's were introduced by the Enduring Powers of Attorney Act 1985 as a means of allowing an attorney’s authority to continue after the loss of mental capacity of the donor. They were then replaced by LPA's in 2007 and it has not been possible to create an EPA since. However, EPA's that were correctly executed before the 1st October 2007 can still be used and registered.

If you created an EPA and it continues to reflect your wishes, there is probably no need to replace your EPA with an LPA. However, there are some key differences between EPA's and LPA's which may necessitate a good think about getting an LPA instead:

1. It is only possible to make an EPA in relation to your property and financial affairs. They do not allow an attorney or attorneys to make decisions about your health and welfare, unlike LPA's, so you would definitely need to make an LPA for your health and welfare if you want someone to manage this for you should you lack capacity.

2. Under an EPA, it wasn’t possible to name replacement attorneys, so if your original attorneys can no longer act for any reason, your EPA will cease. This would then leave you with no one in place to make decisions on your behalf unless an application was made to the Court of Protection to appoint a Deputy, which is a much more expensive and time consuming process. In an LPA, however, you can nominate replacement attorneys to step in and act if your original attorneys die or can no longer act for you.

3. LPAs are much safer than EPA's. Unless you have included a restriction in your EPA that states otherwise, your attorneys can use your EPA whilst you retain capacity and without registering it with the Office of the Public Guardian (OPG). This means EPA's are more open to abuse by unscrupulous attorneys and this is one of the primary reasons why LPAs were introduced to replace them. An LPA, however, must be registered by the OPG before your attorneys can act for you and there are more checks in place under an LPA to ensure donors are not being taken advantage of.

4. LPA's generally offer more flexibility than EPA's as they allow you to include specific preferences and instructions which can guide and inform your attorneys should they need to act for you.

Please feel free to visit my website www.josephcaulfield.co.uk for further information on LPA's and don't leave it too late before getting one! Please also feel free to call me on 07719162106 if you have any questions.

Joseph

Affordable lasting power of attorneys from a UK qualified non-practising solicitor

21/04/2022

We all love money don't we? And we all want to save money if possible? In that case, getting a lasting power of attorney is essential. Let's break this down.

A power of attorney costs £82 per application and since most people get both (to cover their health and welfare and personal finances), the total application costs are £164. If you instructed me to do the work for you, my professional fees would be £550 so the total cost, including disbursements, would be £714.

Now let's compare the costs if you or a loved one didn't have a lasting power of attorney in place. In order to manage that person's affairs once they have lost mental capacity, an application to the Court of Protection would instead be required. This costs £371 and you'll also need to pay £494 if the court decides your case needs a hearing. If you instructed a legal professional to do this work for you, their professional fees could run into thousands of pounds, particularly if the case is complex.

Getting a lasting power of attorney is sensible and getting it done whilst you still retain mental capacity is one of the wisest decisions you or your loved ones can make.

Please feel free to visit my website www.josephcaulfield.co.uk for further information.

Affordable lasting power of attorneys from a UK qualified non-practising solicitor

20/04/2022

Now that the first series of our podcast is done, it’s time to focus on the bread and butter again! Can you believe that approximately 85% of people in the UK have not yet made a lasting power of attorney? Visit www.JosephCaulfield.co.uk to find out why they are essential.

Affordable lasting power of attorneys from a UK qualified non-practising solicitor

28/02/2022

Alternatives to an LPA (lasting power of attorney):

I was asked by a client recently what alternatives there are to an LPA. I would never advise a client to substitute an LPA in favour of something else but in certain circumstances (for example, where time is of the essence and where registration is likely to be delayed) it is advisable to apply for an LPA and put in place the following alternatives:

An advance decision (also known as a living will):

This is a legal document that allows you to set out your advance decision to refuse the giving or continuing of specific medical treatment if you were to be unable to make that decision for yourself at the time in the future when the treatment is required . This would be particularly helpful where an LPA is likely to take some to register (at present, registration is taking 20 weeks) and you have a terminal or degenerative illness or religious belief that is relevant to your treatment. Provided the advance decision is properly drawn up and does not include decisions that are not permitted by law, it is legally binding on the medical professionals treating you in the future.

You cannot use an advance decision to refuse future basic care but providing the correct wording is used, you can refuse life sustaining treatment. The main advantage of having an advance decision in place is that it’s effective as soon as it is made and does not need to be registered before it can be used, unlike an LPA.

Third-party mandates:

This is an arrangement that you make with your bank or building society, in which you give them authority for someone else to carry out everyday banking transactions on your behalf. As with an advance decision, this is effective as soon as it is made.

However, if you lose mental capacity in the future, the authority of the person appointed under the mandate automatically ends, in which a property and financial affairs LPA would be required to be in place.

If you have any questions regarding LPA's or the contents of this post, please email me at [email protected] or call me on 07719162106.

09/12/2021

Acting as an Attorney under an LPA

Although you do not need to be legally trained or qualified to act as an attorney, it is an important role and one that carries significant responsibilities. Potential attorneys should read this guide so they have a clearer understanding of the role before agreeing to to take it on.

The Mental Capacity Act (MCA) 2005:

The Mental Capacity Act 2005 is important because LPA’s are governed by this Act. If you are an attorney, you must have regard to the regulations under this act as well as the MCA Code of Practice. A link to the code of Practice can be found here: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice.

Key Principles of the MCA 2005:

There are 5 key principles that an attorney must follow under the act which are as follows:

1. Attorneys must assume that a donor can make their own decisions unless it is established that he or she is unable to do so.
2. Attorneys must help a donor make as many of their own decisions as possible and must take all practical steps to help a donor make those decisions before making a decision on the donor’s behalf.
3. An attorney must not take the view that a donor is unable to make a decision merely because they make an unwise decision.
4. When making a decision for a donor, they attorney must act in the donor’s best interests.
5. Before attorneys make a decision for a donor, they must consider whether they can make that decision in a way that is less restrictive of the donor’s rights and freedom, but sill achieves the purpose.

Best Interest Decision Making

If you are acting as an attorney under an LPA, everything that is done must be in the donor's best interests. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. The person themselves - their wishes and feelings - and their participation are key. In addition, carers and family members gain a right to be consulted about important decisions.

Code of practice giving guidance for decisions made under the Mental Capacity Act 2005.

29/11/2021

I just came across this excellent article on proposed reforms to the LPA (lasting power of attorney) process. It's well worth a read! Please also feel free to contact me directly if you have any questions about LPA's in generals:
https://www.lawgazette.co.uk/news/society-voices-genuine-concerns-about-power-of-attorney-reforms/5110158.article

29/09/2021

What is a business Lasting Power of Attorney (LPA)?

Much like LPA’s for your personal affairs, business LPA’s allow a nominated individual or individuals to manage a business’ finances should the business owner be unable to do so. A business LPA can be drafted separately to an LPA for your personal financial affairs, although extreme care must be taken when drafting these so they are registered by the Office of the Public Guardian.

Business LPA’s may be suitable for all business owners, for example partners or company directors but they can be especially suitable for sole traders whose business is unlikely to have a separate legal entity from the individual that owns it. A separate business LPA, in this instance, is an effective way for a sole trader to make provision for the continuity of their business, in the event that they are incapacitated.

Another reason for a business owner to consider making a separate business LPA is that any attorneys that they have picked in an LPA for their personal financial affairs may not be suitable for managing the affairs of a business. Picking an attorney to manage the business, who has the relevant skills and experience to do so, can be crucial in ensuring the business continues running even in the event of your incapacity. Without a business LPA, the consequences for a business may be far reaching, with no one having access to funds to pay bills, wages, deal with banks etc, meaning the business could quickly grind to a halt.

If you have any queries about business LPA's, please feel free to either email me at [email protected] or call me on 07719162106.

14/09/2021

3 reasons why you should consider making a lasting power of attorney. I hope you enjoy!

09/09/2021

Please watch this short video I created about lasting power of attorney's (LPA's) which explains what they are in just 2 minutes!