Back to Insights- Wills & Succession Planning
Longer Reads
Can we avoid delays in setting up powers of attorney?
Partner James Cook advises a Financial Times’ reader on obtaining lasting powers of attorney for their mother who is affected by dementia.
1 minute read
Published 1 June 2023
Key information
- Specialisms
- Private Wealth
- Services
- Wills & Succession Planning
The Financial Times reader seeks advice regarding their mother, who is in her mid-eighties and suffering from dementia. They, along with their two siblings, want to obtain lasting powers of attorney while their mother is still capable of consenting. The reader is aware of delays in obtaining the necessary paperwork from the Office of the Public Guardian (OPG) and is worried it could take months.
The most effective method to avoid unnecessary delays is to ensure that the LPAs have been correctly drafted and executed. The information required for an LPA is not onerous. However, it is common for mistakes to occur in the signing of these documents, such as signing them in the wrong order or in the wrong place.
When completing an LPA, we usually advise to elect that the LPA is registered immediately, rather than at the stage the donor has lost capacity. Although not necessarily a concern for this reader, it is prudent for a medical or legal professional to act as the certificate provider so as to mitigate against a potential disagreement regarding the donor’s mental capacity at the time of executing the LPAs.
It is important to note that capacity is not binary under the Mental Capacity Act 2005 and your mother’s recent deterioration will not necessarily preclude her from validly signing an LPA where, at the time of signing, she is able to understand the effect of executing the LPAs and the appointment of her attorneys.
Unfortunately, the OPG does not readily accelerate applications. If an urgent application is required, it would likely be necessary to submit an application to the Court of Protection for a deputyship. This process can be costly and time-consuming.
Whilst the LPA is being registered, it would be advisable to consider contacting a solicitor to draft a General Power of Attorney (POA) regarding your mother’s financial affairs. A POA will take effect immediately upon execution and will allow you (or the appointed attorney) to manage your mother’s financial affairs. The POA can only be used while your mother has the requisite mental capacity to manage her affairs, however, it may assist in the general administration of her affairs as her condition deteriorates.
It may also be advisable to liaise with a financial adviser to establish joint bank accounts and ensure your mother’s financial security through products such as annuities, which would provide for her needs after she has lost capacity.
For more information, visit our Lasting Power of Attorney FAQs page.
This article was first published on the Financial Times in May 2023.
Related latest updates
PREV
NEXT
Longer Reads
Read more
Piggy Banks to Portfolios: can children hold shares in a company?
Shorter Reads
Read more
CB team comments on the Chancellor’s 2024 Spring BudgetShorter Reads
Read more
Why should families take heed of the Alain Delon inheritance dispute?
Shorter Reads
Read more
Should I protect my finances ahead of US and UK elections?
Longer Reads
Read more
The implications of inheritance taxLonger Reads
Read more
Jury rules document found in Aretha Franklin’s couch is valid willShorter Reads
Read more
Lasting Power of Attorney delays and potential solutionsShorter Reads
Read more
How will the Autumn Statement impact inheritance tax
Podcasts
Listen now
Where there’s a Will, there’s a way (Part 2)
Podcasts
Listen now
Where there’s a Will, there’s a way (Part 1)Shorter Reads
Read more
Gifts and Lasting Powers of Attorney (“LPAs”)Shorter Reads
Read more
How women can prepare for their greater exposure to IHTVideos
Watch now
The importance of having a Will and reviewing it regularly
Shorter Reads
Read more
Coronavirus – Can I create a Will while observing social distancing?Longer Reads
Read more
Coronavirus: Tax and Estate Planning Tips in the LockdownLonger Reads
Read more
Coronavirus – Can you create a Will while self-isolating?
Shorter Reads
Read more
What happens if a will is found after an estate has already been divided?News
Read more
Tax and Estate Planning team continues strong growth with new Partner hireShorter Reads
Read more
Why apathy isn’t good enough when it comes to Wills
Shorter Reads
Read more
Which parent died first and why does it matter?
Shorter Reads
Read more
Are robots writing your will?
Shorter Reads
Read more
Why giving money to UKIP might give you a large tax billShorter Reads
Read more
Why you will no longer need to swear when visiting your solicitorShorter Reads
Read more
Why you will no longer need to swear when visiting your solicitor
Shorter Reads
Read more
Leave your estate to loved ones rather than up to chanceShorter Reads
Read more
Don’t e(stop) til you get enoughShorter Reads
Read more
Lawyer legacy leaves large litigation liabilityShorter Reads
Read more
Socialite Tara Palmer-Tomkinson left her fortune to children she never had
Shorter Reads
Read more
Unsent text accepted as dead man’s Will by Australian court
Related content
Longer Reads
Can we avoid delays in setting up powers of attorney?
Partner James Cook advises a Financial Times’ reader on obtaining lasting powers of attorney for their mother who is affected by dementia.
Published 1 June 2023
Associated sectors / services
The Financial Times reader seeks advice regarding their mother, who is in her mid-eighties and suffering from dementia. They, along with their two siblings, want to obtain lasting powers of attorney while their mother is still capable of consenting. The reader is aware of delays in obtaining the necessary paperwork from the Office of the Public Guardian (OPG) and is worried it could take months.
The most effective method to avoid unnecessary delays is to ensure that the LPAs have been correctly drafted and executed. The information required for an LPA is not onerous. However, it is common for mistakes to occur in the signing of these documents, such as signing them in the wrong order or in the wrong place.
When completing an LPA, we usually advise to elect that the LPA is registered immediately, rather than at the stage the donor has lost capacity. Although not necessarily a concern for this reader, it is prudent for a medical or legal professional to act as the certificate provider so as to mitigate against a potential disagreement regarding the donor’s mental capacity at the time of executing the LPAs.
It is important to note that capacity is not binary under the Mental Capacity Act 2005 and your mother’s recent deterioration will not necessarily preclude her from validly signing an LPA where, at the time of signing, she is able to understand the effect of executing the LPAs and the appointment of her attorneys.
Unfortunately, the OPG does not readily accelerate applications. If an urgent application is required, it would likely be necessary to submit an application to the Court of Protection for a deputyship. This process can be costly and time-consuming.
Whilst the LPA is being registered, it would be advisable to consider contacting a solicitor to draft a General Power of Attorney (POA) regarding your mother’s financial affairs. A POA will take effect immediately upon execution and will allow you (or the appointed attorney) to manage your mother’s financial affairs. The POA can only be used while your mother has the requisite mental capacity to manage her affairs, however, it may assist in the general administration of her affairs as her condition deteriorates.
It may also be advisable to liaise with a financial adviser to establish joint bank accounts and ensure your mother’s financial security through products such as annuities, which would provide for her needs after she has lost capacity.
For more information, visit our Lasting Power of Attorney FAQs page.
This article was first published on the Financial Times in May 2023.
Associated sectors / services
- Wills & Succession Planning
Need some more information? Make an enquiry below.
Enjoy reading our articles? why not subscribe to notifications so you’ll never miss one?
Subscribe to our articlesMessage us on WhatsApp (calling not available)
Please note that Collyer Bristow provides this service during office hours for general information and enquiries only and that no legal or other professional advice will be provided over the WhatsApp platform. Please also note that if you choose to use this platform your personal data is likely to be processed outside the UK and EEA, including in the US. Appropriate legal or other professional opinion should be taken before taking or omitting to take any action in respect of any specific problem. Collyer Bristow LLP accepts no liability for any loss or damage which may arise from reliance on information provided. All information will be deleted immediately upon completion of a conversation.
Close
