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Reminder: Office of the Public Guardian Refund Scheme

By | LPA | No Comments

It has been over six months since the Office of the Public Guardian (OPG) announced their power of attorney refund scheme. Recent evidence however shows that only around 15% of those entitled to a refund have applied to the OPG. Due to this, we would like to put out a reminder about the scheme and how clients can apply for a refund. Please note that WillPack is not able to assist with applying for refund. Only the donor, attorney or personal representatives (if the donor is deceased) can apply. Overview Between the period of 1 April 2013 and 31 March 2017, the operating costs of the OPG were reduced as their process became more efficient. The OPG’s application fee remained the same and as a result the OPG generated a surplus. The exact amount refundable depends when the power of attorney was registered at the OPG. Registered April to September…

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Paying Fees to an Attorney

By | LPA | No Comments

Reasonable Expenses All attorneys are able to claim reasonable expenses they incur whilst acting for the donor. This includes expenses such as postage, travel costs and the cost of an accountant preparing annual accounts. This does not have to specifically mentioned in the Lasting Power of Attorney (LPA) itself but could be included should the donor wish. Professional Attorneys There is debate on whether a professional attorney, such as a solicitor or an accountant, could be paid a fee for their services if there is no express power included in the LPA. The Office of the Public Guardian (OPG) suggest in their PN01 practice note that a professional cannot charge if there is no express power included in the LPA. We would therefore advise that if a professional attorney wishes to charge fees for their services, then a charging clause should be included as an instruction in the LPA. It…

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Replacement Attorneys on a Lasting Power of Attorney

Replacement Attorneys on a Lasting Power of Attorney

By | LPA | No Comments

Under an LPA, the donor can name specific replacement attorneys that will step in to act in certain situations. When the replacement attorneys step in will depend on how the original attorneys are appointed. Replacing a sole attorney Replacements attorneys will start acting as soon as the original attorney is no longer able to act (i.e. death, mental incapacity or disclaims). Unless the LPA says otherwise, the replacement attorneys will act jointly. Replacing attorneys acting jointly Replacement attorneys will step in to act as soon as one original attorney is no longer able to act. The remaining original attorneys will no longer be able to act. If multiple replacement attorneys are appointed, they will also act jointly, unless the LPA states otherwise. Replacing attorneys acting jointly and severally Replacement attorneys will step in as soon as one original attorney is no longer able to act. The replacement attorneys will act…

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Advance Decisions and Health and Welfare LPAs

Advance Decisions and Health and Welfare LPAs

By | LPA | No Comments

An advance decision is a decision made by a person refusing consent to the giving or continuing of certain medical treatments. This statement is made whilst they have mental capacity, in anticipation of a time in the future when they no longer have capacity. Advance decisions are also commonly referred to as an advance decision to refuse treatment, a living will or an advance directive. As they deal with medical treatment after a person has lost capacity, there is overlap between them and a health and welfare LPA. The exact relationship between the two documents depends on which document was created first. If an advance decision is created after a health and welfare LPA, attorneys cannot consent to any treatment refused in the advance directive. Being the later document, the advance decision will overrule authority granted to the attorneys over those specific decisions. If a health and welfare LPA is…

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Partial LPA Revocation

By | LPA | No Comments

After an LPA has been signed, it could be several months or years before the document is registered with the Office of the Public Guardian (OPG), or before they even need to be used. During this time the circumstances may change, and the donor may decide that he/she no longer wishes for one or more of their attorneys to act on their behalf, or an attorney may decide they no longer wish to act. In exceptional cases, an attorney may believe that another attorney is no longer trustworthy and does not wish that attorney to act. The solution to these issues can depend on the exact circumstances at the time, such as if the donor has capacity or not, or if the LPA is registered. If the donor still has the capacity to make decisions, and the LPA is unregistered, they have two choices. They could write a Partial Deed…

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LPA’s – Instructions and Preferences

By | LPA | No Comments

In Lasting Power of Attorney documents, the donor can choose to place rules or guidance within the documents themselves to state exactly how they would like the attorneys to approach certain decisions should they lose the capacity to make decisions for themselves. This can be achieved on Section 7, Page 8 of each type of LPA under Instructions and Preferences. Placing a preference into an LPA is a non-binding wish that the attorneys may consider when making decisions on behalf of the donor. An example of this could be; ‘I would like to donate £2 a month to Cancer Research UK’. When the attorneys are making any decisions regarding any preferences specified in the LPAs, they must consider if this is how the donor would act, and if this is in the best interest of the donor. If the attorneys deem such a decision is not in the best interest…

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Attorneys making gifts under an LPA

Attorneys making gifts under an LPA

By | LPA | No Comments

Subject to instructions saying otherwise, attorneys of a Property and Affairs Lasting Power of Attorney have a power to make the following gifts: Gifts to charities that the donor may have given to; and Gifts to family members, friends or acquaintances of the donor on ‘customary occasions’ A customary occasion for this purpose means occasions where is it usual for gifts to be given, for example a birth, a birthday, a wedding/civil partnership, an anniversary or religious holidays. Any gifts made by attorneys must be reasonable in regards to the size of the donor’s estate and their expected current and future needs. The type of gifts the donor used to make when they had capacity should also be considered although just because a donor used to make generous gifts, it does not mean that it would be reasonable for the attorneys to make similar sized gifts, for example if care…

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Administration Notes

Administration Notes

By | Admin | No Comments
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How Attorneys Can Act

How Attorneys Can Act

By | LPA | No Comments

Where a client is wishing to appoint multiple attorneys or replacement attorneys, it should be considered how these attorneys are to act. Multiple attorneys can either act jointly, jointly and severally or jointly in some matters and jointly and severally in others. Attorneys acting jointly must make decisions for the donor together and must all agree. Attorneys acting jointly and severally on the other hand can either act together or independently. Attorneys may also act jointly in some matters and jointly and severally in others. An example of this being where a donor wishes the attorneys for the Property and Affairs LPA to act jointly in relation to matters worth over £10,000 and to act jointly and severally in all other matters. On first glance, attorneys acting jointly seems very desirable. It provides an extra safeguard as all must act together and agree on the action, restricting the possibility for…

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Discretionary Fund Management

By | LPA | No Comments

Following guidance and suggested wording issued by the Office of the Public Guardian with regards to Discretionary Fund Management (DFM), we looked at this in great detail and continued to review the situation. WillPack along with a number of other organisations took the decision not include the instruction due to uncertainty around the issue. Having taken further legal and professional advice after talking to a number of our IFA’s, we will now be issuing a new LPA instruction form to include the DFM instruction as a yes or no option. However, caution will need to be taken as The Office of the Public Guardian cannot guarantee that the bank/ organisation will accept the suggested wording and it is advisable that the donor contacts the bank/ discretionary investment manager to confirm in writing that they will accept the wording; or they seek their own legal advice as appropriate before the LPA…

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