Lasting Power of Attorney

In the past there was only one type of Attorney document available – an Enduring Power of Attorney and this covered everything that was needed. It did not need to be registered until the donor lacked capacity.

This was changed in May 2008 when the new Lasting Power of Attorney became available. This was split into two types of attorney document – covering Property & Financial Affairs and Health & Welfare. This has since been revised further with the implementation of new forms and rules in July 2015.

About these two types of Lasting Powers of Attorney:

The first allows you to choose people to act on your behalf (as attorneys) and make decisions about your Property and Financial Affairs, before or only after you are unable to make decisions for yourself.

The second document allows you to choose people to act on your behalf (attorneys) and make decisions about your Health and Personal Welfare when you are unable to make decisions for yourself. This can include decisions about your healthcare and medical treatment, decisions about where to live and day-to-day decisions about your personal welfare such as diet, dress or daily routine.

We take great care in the completion of the forms required and ensure that all the sections have been completed, signed and witnessed correctly in readiness for registration when required. We will be pleased to take you through the process of setting up a Lasting Power of Attorney and registering it with the Office of the Public Guardian

If you are establishing a Lasting Power of Attorney for business purposes, or feel that you may require use of this document at a moment’s notice we recommend, avoiding any potential for business interruption, that registration should take place IMMEDIATELY, with the documents being securely stored by us until required. The Office of the Public Guardian take many weeks to complete registration.

If you choose more than one Attorney you must decide whether your Attorneys should act together or together and independently (i.e. they can all act together but they can also act separately if they wish). This is the default option that we normally recommend as it ensures that the power continues to be valid even in the event of the death or incapacity of one of the nominated attorneys.

You may appoint your Attorneys together in respect of some matters and together and independently in respect of others.

Registration

The Lasting Powers of Attorney document needs to be registered before it can be utilised.

As recommended, you may require your Lasting Powers to be registered with the Office of the Public Guardian (OPG) or alternatively stored for possible registration at a later date. If you wish to register now and are exempt from the full or part registration payment we will send you the appropriate claim form. In some circumstances one of you may be eligible for a partial registration fee or total exemption whilst the other is not.

Once your document has been completed and signed by all parties concerned we ask that you advise if you require your Lasting Powers to be registered now, incurring the additional cost of the OPG’s fee, or stored safely until required with registration taking place at a later date, if necessary.  We recommend registration now to ensure that the document can be implemented at short notice should the need arise.  The CJH Registration cost for us to register is currently £55 per document, plus the registration fee levied by the OPG, but if this is arranged NOW the registration fee due to us is waived  or may be  reduced to only £15 per document.

At the time of writing the current fee for registration of each Lasting Power of Attorney is now £82.00 with reductions if your income is below £12,000 p.a. and if registration is required you will be asked to make your cheque payable to the ‘Office of the Public Guardian’ when you return your final documents to us or to choose the option of providing the OPG with your debit or credit card details to facilitate payment.   If registration is arranged in the future the cost may be higher.  In some cases the registration fee may be reduced or waived as detailed below.

 If your income is currently below £12,000 p.a. then you may be eligible to a reduction of this registration fee, currently 50% of the total fee payable. If you are claiming income related state benefits you may be exempt from payment.   In either case, we will provide appropriate forms for you and enclose these with the final documents and completed registration forms at that time. If you are eligible for part exemption (called fee remission) it is always best to claim and register now as fee remission or fee exemption may not be available in the future.

Fee Exemption

 No fee is payable if you receive any of the following benefits:-

Income Support; Income based Employment & Support Allowance;  Income based Job-Seeker’s Allowance;  State Pension Guarantee Credit element of State Pension Credit;  A combination of Working Tax Credit and either Child Tax Credit, Disability Element or Severe Disability Element;  Housing;  Council Tax Benefit (not the 25% single person reduction, or exemption);  Local housing allowance.

 Evidence of any of the above must be supplied in the form of an official letter or entitlement notice from the appropriate benefit provider dated no more than 3 months old

Advance Directive or Living Wills

No one has a crystal ball to see when unfortunate accidents or illnesses will befall them.

If you should go into hospital for an operation, prior to being taken down to the theatre you are always advised of your rights if something should go wrong.

Often a ‘Do Not Resuscitate’ clause is agreed, as patients are concerned about the effects of being ‘kept alive’ might have on their family, especially if it meant the estate was frozen, because they were in a continued state of ‘Limbo’.

The most famous example of this is the 1988 Hillsborough Football Disaster which lead to the ‘Right to Die’ principle in 1993, established in British Law by the Tony Bland case. A brain damaged survivor of the Hillsborough disaster, Mr Bland had been in a vegative state since the tragedy at Sheffield Wednesdays grounds over 4 years earlier. In a landmark judgement it was ruled that doctors could allow a patient to die where it was held to be in the person’s best interests.

However in the 10 years that followed, fewer than 40 people had been granted that right.

In each case only the President of the High Court Family Division (at that time Dame Elizabeth Butler-Sloss) or a High Court Judge sanctioned by her – can give that permission.

Some years ago questions were raised about the European Human Rights Legislation which gives everybody the ‘Right to Life’. But back in October 2000, Dame Butler-Sloss presiding over the case of two woman granted the ‘Right to Die’, ruled that the legislation did not affect the Bland Judgement.

The whole issue has proved controversial in recent years, with the High Court sometimes making a stand against euthanasia.

Diane Petty, a Motor-Neurone disease sufferer who lived in Luton, went to court to seek the ‘Right to die with Dignity’ but was repeatedly turned down.

She eventually died in May 2002, aged 43 years.

All this trauma can have a devastating effect on one’s family and loved ones, who are unable to ensure that their ‘nearest and dearest’ can pass with dignity, enabling the rest of the family to get on with their lives.

Whilst the person remains in this state of limbo – and often cases such as the above are left in a vegative state or coma for several years – the estate is often frozen and cannot be passed onto to dependant relatives i.e. spouse or children. If however, the person has made ‘A WRITTEN STATEMENT’ in advance, outlining their intentions after discussion with their family the situation is clearer for all.

THESE “ADVANCE INSTRUCTIONS” ARE KNOWN AS A ‘LIVING WILL’ OR ‘ADVANCE DIRECTIVE’

Once the document has been completed, (we have 4 to choose from) signed and witnessed, it can then direct that:

In the event that they suffer from one or more of the conditions mentioned in the schedule, and if they have become unable to participate effectively in decisions about their medical care, and

That one or two independent doctors are of the opinion that they are unlikely to recover from the illness or impairment without involving ‘severe distress or incapacity for rational existenc, then IN THOSE CIRCUMSTANCES , they ask that they not be subjected to any medical intervention or treatment aimed at prolonging or sustaining life.

It is also usual to request that a close relative or friend be contacted first to enable them, and other relatives to be with you before being allowed to ‘die in peace.

Once this document is authorised by you, we recommend it be passed to the family doctor who will often take a copy for their records, returning the original for safekeeping.

This form of ‘Living Will’ is becoming very popular and can be arranged for the total inclusive cost of up to £35.00 for a single directive, or £55.00 for a double directive. Discounts may be given if this is arranged at the same time as other Estate Planning instructions.