Lasting Power of Attorney - A complete guide

Lasting Power of Attorney A complete guide Why create a LPA Picking your attorneys How to fill out a LPA

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Contents Chapter 1: What is a Lasting Power of Attorney (LPA)?

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Chapter 2: Why create a LPA?

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Chapter 3: How to create a LPA

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Chapter 4: Choosing your attorney for a LPA

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Chapter 5: Acting as an attorney

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Chapter 6: Filling out and completing a LPA

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What is a Statement of Wishes?

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Chapter 7: Registering and using a LPA

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Chapter 8: Storing, amending and ending a LPA

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Chapter 9: What could go wrong when making a LPA?

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Chapter 10: Deputies and the Court of Protection

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Chapter 11: Power of Attorney in Scotland

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Chapter 12: Power of Attorney in Northern Ireland

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Chapter 13: Power of Attorney: Frequently Asked Questions

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Legal disclaimer: Please note that the information provided in this book: • Does not provide a complete or authoritative statement of the law; • Does not constitute legal advice by Unforgettable; • Does not create a contractual relationship; • Does not form part of any other advice, whether paid or free.

Unforgettable Lasting Power of Attorney Service Why do I need a Lasting Power of Attorney?

We can lose our mental capacity at any time. When this happens, decisions become difficult, if not impossible. We’ll need someone else to make decisions for us. It’s critical to have a Lasting Power of Attorney, or LPA. • Dementia is the number one reason people need an LPA • It’s the most thoughtful, generous and kind thing you can do • It stops you ever being a burden • It only takes 30 mins • It prevents endless family heartache in the future

Lasting Power of Attorney

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Chapter 1: What is a Lasting Power of Attorney (LPA)?

This vital document is an important piece of paperwork, especially for those whose lives are affected by dementia. Without one the financial aspects of caring can be simple, without one it can be hell. Find out what it is used for…

A Lasting Power of Attorney is a legal document which lets you appoint someone (or multiple people) who you trust to act on your behalf in different areas of your life.

It’s a useful document because it means that should something happen to you, and you’re unable to make decisions for yourself, there will be someone who can make them for you in a safe and fair way, keeping your best interests at heart.

What’s a Lasting Power of Attorney got to do with dementia?

A Power of Attorney is important for people with dementia because it’s highly likely that someone with the condition will eventually lose the ability to make decisions for themselves. Although the time it takes to reach this point will vary from person to person, unless something happens to them (for example another health problem), we know that they will lose their capacity to make decisions, making it a vital document to set up.

What if you don’t have one?

If you don’t have a LPA and need to act on behalf of your loved one, you will have to apply to the Court of Protection to become a Deputy, which is much more complicated and expensive process.

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The two types of Lasting Power of Attorney There are two types of Power of Attorney and you can set up one or both.

1. Property and Financial Affairs LPA As the name suggests this type of LPA gives someone the authority to manage your property and money. This could include bank or building society accounts, bills, collecting a pension or benefits and even selling your home.

2. Health and Welfare LPA This covers areas surrounding your health and wellbeing, including decisions around your daily care (washing, dressing, eating), medical care and treatment (such as resuscitation) or whether it’s time to move into a care home. It’s sometimes called a Personal Welfare LPA. The two types are similar in the way they’re set up. The main difference is that you can only start using a Health and Welfare LPA after the person it’s been set up for is unable to make a decision — known as lacking mental capacity. The Property and Financial Affairs LPA can be used before someone has lost mental capacity, unless it specifies otherwise.

For every three people that have a property and financial affairs LPA, there is one person with a health and welfare LPA. Other names for a Lasting Power of Attorney Enduring Power of Attorney You may sometimes hear Power of Attorney referred to as Enduring Power of Attorney (EPA). This was the old name for what was a similar document, although it only covered finances and property. The Lasting Power of Attorney was introduced in October 2007 and replaced the old system of EPA. However, if you or someone you know made an Enduring Power of Attorney before October 2007, it will still be valid. An EPA may be used without it having to be registered first (like a LPA), but this won’t apply for decisions relating to financial and property matters. Once you’ve lost mental capacity, your attorney will need to register the EPA with the Office of the Public Guardian to make any further decisions.

Enduring Power of Attorney is also the name given to power of attorney if it’s set up in Northern Ireland.

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Lasting Power of Attorney

Ordinary Power of Attorney An Ordinary Power of Attorney is not the same as a Lasting Power. It is a temporary power which allows someone to manage your bank account, sell your house or organise your tax affairs for you while you are travelling or on holiday. It is for a specific reason and intended to be valid for a short period. A Lasting Power of Attorney is usually more general in its application and as the name suggests is intended to last for a long period and once valid remains valid whether or not you have mental capacity.

General Powers of Attorney This is the name given to Ordinary Power of Attorney if you’re in Scotland.

Continuing Power of Attorney This is the name given to Property and Finances Lasting Power of Attorney in Scotland.

Country

Name

England

Property & Finance Lasting Power of Attorney Health & Welfare Lasting Power of Attorney [Previously known as Enduring Power of Attorney]

Wales

Property & Finance Lasting Power of Attorney Health & Welfare Lasting Power of Attorney [Previously known as Enduring Power of Attorney]

Scotland

Continuing Power of Attorney Welfare Power of Attorney

Northern Ireland

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What’s the difference between a Power of Attorney and a Lasting Power of Attorney?

A Power of attorney is not the same as Lasting Power of Attorney. It is the same sort of difference as between a contract and an employment contract. A Lasting Power of Attorney is a Power of Attorney, but it applies to specific things in specific circumstances and must be registered. A Power of Attorney is simply a type of legal agreement that gives one person authority to do something on behalf of another.

I have a Will, why do I need a LPA? Many people haven’t heard of a Lasting Power of Attorney, and if they have, there are some that assume they don’t need to make one because they have already written a Will.

The truth is, a Will and a LPA are complete opposites. Whereas a Will protects your beneficiaries’ — your spouse, children etc — interests after you have died, a LPA protects your interests, while you’re alive.

A Will and a LPA are connected only in so much as the LPA is in operation until you die, at which point your Will ‘takes over’.

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Advanced decision vs LPA Some people choose to make something called an Advanced Decision. It’s basically a document detailing whether or not you wish to refuse specific medical treatment if you become ill later down the line.

An advanced decision differs from the health and welfare Lasting Power of Attorney because it is you who is making the decision about your health rather than your appointed attorney. It will come into effect as soon as it has been signed and witnessed correctly.

An Advanced Decision is very specific and only refers to the particular treatments or medical circumstances that you include in the document. If something else happens to you that you haven’t covered in the decision, it won’t apply.

A Health and Welfare LPA covers all medical possibilities, however, it will be the attorney, not you, who makes decisions about any medical questions that arise (because it only comes into force once you lose mental capacity) unless you have stipulated anything specific when writing the LPA. You can give guidance to help your attorney with your decisions.

If you decide to make both a Health and Welfare LPA and an Advanced Decision document, it is the most recent document that will take precedence. If you made an Advanced Decision first, and then make a Health and Welfare LPA, your attorney may be able to overrule requests made in the Advanced Decision (for example life-sustaining treatment) because it was created later.

For example, if someone appointed their brother to be a Health and Welfare LPA and then later made an Advanced Decision to refuse resuscitation (DNR), if they then have a heart attack, the brother would not be able to tell medical staff to ignore the DNR request. However, if the Advanced Decision was written first, the brother would be able to ignore any requests (although strictly speaking, he wouldn’t be acting in the interests of the donor) and ask that medical staff resuscitate if needed.

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Chapter 2: Why create a LPA? You may not realise it, but a Lasting Power of Attorney is probably as important a document as a Will. Here’s why you need to create one…

It’s a good idea to set up a Lasting Power of Attorney (LPA) now, while you’re in a position to do so, as it means the right people will be ready and willing to look after you and act in your best interests.

If you go on to lose mental capacity (which for someone with dementia, is a highly likely symptom), these people will be able to make decisions for you.

If you don’t set up an LPA before you lose mental capacity, then family members will need to go through the Court of Protection to appoint a deputy to manage your affairs — a process which can be decidedly more complex, long-winded and expensive. What’s more, it could mean a stranger (such as an accountant or lawyer), and not your loved one will have to make every decision for you. You cannot set up a Lasting Power of Attorney for someone if they have already lost mental capacity.

Who should have an LPA and why is it specifically important for dementia?

In an ideal world, everyone over the age of 18 would have set up Lasting Power of Attorney for themselves because potentially anyone could lose mental capacity at any point in their life, from getting ill or having an accident in their youth, to developing dementia as they get older.

Research by SAGA found more than four in 10 Britons felt they were too young or healthy to need a LPA. However, it’s particularly important in reference to dementia because loss of capacity is highly likely, so you know that eventually someone will have to start managing your affairs for you. A LPA gives them a legal opportunity to do this.

Other health conditions that you should set up a LPA after being diagnosed with include stroke, coma, delirium, concussion, severe mental health problems, neuro-disability/brain injury and alcohol and drug misuse.

It’s important to remember that just because you’re married or in a civil partnership with someone, it doesn’t automatically mean you’ll be able to deal with your partner’s bank accounts and pensions if they have lost capacity. You will have no authority to do this unless they have set up a LPA. The same goes for ‘next-of-kin’ — a phrase that the law does not recognise.

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What happens if you don’t make a Lasting Power of Attorney?

It’s not a legal requirement for everyone to make a LPA, but it’s definitely a good idea. If there is nobody with the legal authority to manage your affairs — for example accessing your bank account or selling your home — then the person who you would want to do this will need to apply to the Court of Protection.

This is a legal body set up through the Mental Capacity Act which makes decisions for people who are lacking mental capacity. The Court will appoint deputies — one for property and financial affairs and one for personal welfare — who will then make decisions for them.

Why you shouldn’t wait too long when making a LPA Dementia is a progressive condition but you can’t always know how slowly or quickly the rate of cognitive decline will be. Some people can maintain their mental capacity for many years after diagnosis, while others will decline much more quickly, sometimes in the space of a year. That’s why it’s a good idea to set up a LPA as soon as possible, even before you have the official diagnosis, as in the rush and stress of pre- and post-diagnosis life, with its many tests and meetings, it could be something that gets neglected.

Can you still set up a Lasting Power of Attorney if you have already been diagnosed with dementia?

Yes, so long as when you set up and sign the forms for the LPA, you are judged to have full mental capacity and to understand what you are signing. However, in order for this to be the case, you will need to get things moving IMMEDIATELY after you are diagnosed.

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Chapter 3: How to create a LPA Now you’ve taken the step to make a LPA, you’ll discover the process is relatively straightforward…

Once you’ve made the decision to set up a Lasting Power of Attorney, either for yourself or a family member, there are certain steps you’ll need to take.

How to make a LPA With Unforgettable Unforgettable.org now offer a service which can help you to create legally binding Lasting Power of Attorney documents. We’ve created a free and easy-to-use online questionnaire which automatically completes your Lasting Power of Attorney forms for you. It also features: • Helpful guides and instructions to completing and registering your Lasting Power of Attorney, and a telephone helpline.

• The only service available that includes helpful questions to consider specifically relating to dementia care.

• Additional services available (starting from £79) which includes having an expert check, validate and register your forms with the government for you.

• Telephone consultations and home visits available for those who want even more support.

• Mental capacity experts who can assess Mental Capacity and provide Certification.

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Need help with your Lasting Power of Attorney document?

Find out how Unforgettable can help you create a legally binding document for free, with additional support from £79, by visiting www.unforgettable.org/lastingpowerofattorney Without a solicitor You don’t have to use a legal representative to create a Lasting Power of Attorney as you can simply download and fill in the forms for the LPA and post it off to the Office of the Public Guardian with your payment. However, some people prefer someone with some legal expertise to look over the document before sending it off, rather like you would with a Will.

Step 1: • You can download the forms for a LPA from here, you can request for them to be sent to you by post, or you can complete online.

Step 2: Once you have filled the forms in, the relevant people need to sign them in the correct order. These will include the people you have picked as your attorneys, the witnesses who will need to witness the signing of the forms, and a certificate provider.

Step 3: • Once everyone has signed the form, you will need to register it with Office of the Public Guardian.

You cannot start using a LPA until it is registered with them.

Step 4: • You may also want to fill out forms to send to ‘people to notify’. These are people who you wish to notify of the creation of the LPA, as it will give them an opportunity to object to it if they feel they need to.

Step 5: • While you don’t have to register a LPA immediately, it’s a good idea in case there are any mistakes.

If you delay until after the person with dementia loses mental capacity, it will be impossible to fix any errors. This could make the whole LPA invalid and it will not be possible to register or use it.

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With a solicitor Some people prefer to make a LPA with a solicitor, as it is quite a powerful legal document, and if there are issues surrounding complex assets, businesses, overseas property or if members of the family don’t get on, then a solicitor can help.

They may download the same forms or use their own versions, but you will obviously need to pay for the services of the solicitor as well as the cost of the Power of Attorney. Fees can vary from around £150 to £3000 depending on the firm.

Requirements for making a LPA • The person must have mental capacity • They must choose at least one person to be their attorney (but often more than one).

• They must pay a fee to register the LPA

Can I make a LPA for someone else?

You can fill out the LPA for someone else, but they will still need to be present, have mental capacity and understanding of what they’re signing and be able to sign it themselves.

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Who’s who of the LPA? Office of the Public Guardian This is the agency that deals with Lasting Power of Attorney (and Enduring Power of Attorney if registered before 2007). It is responsible for supervising deputies appointed by the Court of Protection.

The powers extend to those living in England and Wales (there are different systems in Scotland and Northern Ireland).

Court of Protection This is the court that makes decisions and appoints deputies to act for people who do not have mental capacity and are unable to make decisions for themselves about their health, finance or welfare.

Donor You can be a donor if you’re aged over 18 and wish to give Power of Attorney to someone else so that they can manage your finances, property and health and welfare in the event that you lose your mental capacity.

Attorney This is the person that is appointed by the Donor to make decisions on their behalf concerning either their property and financial affairs, health and welfare, or both. An attorney must agree to the role.

Deputy This is someone appointed by the Court of Protection to act on behalf of the donor and manage their personal welfare or finance and property if they have lost mental capacity. They are only needed if someone has lost their mental capacity and not managed to set up a Lasting Power of Attorney beforehand. In effect, a deputy is an attorney that you don’t choose.

Witness This is someone who witnesses the signing and dating of a LPA form by either the donor or the attorney(s).

Certificate provider They are responsible for confirming that the Donor understands the LPA and is not being pressured into making it. They could be a professional — such as a doctor — or someone the donor has known for at least two years. They will be required to sign the LPA before it is registered.

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Chapter 4: Choosing your attorney for a LPA Once you’ve decided to set up a LPA, you’ll need to think about who you’re going to choose as an attorney.

What is an attorney?

This is someone who is appointed to make decisions on behalf of another person concerning either their property and financial affairs, health and welfare, or both. They must agree to take on the role.

Who can be your attorney?

The person you pick for an attorney must be over 18 years old. You could choose: • Your husband, wife or partner • A relative — son, daughter, brother or sister • A friend • A professional, such as a solicitor or family doctor However, they must have mental capacity themselves to make decisions. You also cannot choose someone as a property and financial affairs attorney if they are subject to a Debt Relief Order or are bankrupt.

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Choosing someone to be an attorney — what to ask yourself Do you trust them?

This is probably one of the most important factors to consider. You need to have the belief and the trust that they will continue to act in your best interests when you are unable to do it yourself. This can sometimes boil down to an issue around how well you know them, but even that is not necessarily a good indicator of whether they can manage the responsibility of a Power of Attorney. For example, if one of your children — who you’ll have known their whole life — is not especially good at managing money, you may want to ensure that the others in your family have finance and property LPA set up but not them.

Can they look after their own affairs?

As mentioned above, there’s no point giving a relative or friend the responsibility of managing your finances or property if they are not great at looking after their own affairs. They need to be able to juggle their own life and all that entails plus all the workings of your life, so it’s worth thinking about whether your potential attorney can do that.

Are you happy for them to make decisions for you?

The job of an attorney is to look after your best interests and make decisions for you once you have lost mental capacity (or before if you have stipulated this on your Property & Finance LPA). Whether they are an attorney for finance and property, health and welfare or both, it’s vital that you recognise that once the LPA comes into effect, they will be making important decisions on issues such as how your money is spent, what happens to where you live and how you are cared for. If, for any reason, you really don’t like the idea of someone making decisions for you in these areas, you need to reconsider the person you have in mind as an attorney.

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How many attorneys can you appoint?

There is no limit on the number of attorneys you can have and it generally depends on your individual circumstances. For some people, having one Attorney may be sufficient, but for others it may be the case that three or four Attorneys may be more suitable. It is rare for people to need more than four Attorneys and the most usual number is two.

How attorneys work together — jointly v severally If you have appointed more than one attorney, you can decide whether you want them to act jointly or jointly and severally. There are advantages and disadvantages of each option.

Attorneys that act jointly… …must all agree to any decision made by them. This means that if they have to make a decision, they must all be available to sign the documents. The advantage of this is that the responsibility of making a decision does not fall on just one person. The disadvantage is that waiting for everyone to sign off on a decision can sometimes make the process more drawn out, especially if they cannot agree. You would also need to ensure that you have appointed replacement attorneys (see below) because if you have not done this and one attorney dies, steps down or becomes bankrupt, the LPA is terminated.

Attorneys that act jointly and severally… … can make a decision on their own or with the agreement of the other attorneys. This means only one of the attorneys needs to be available to sign off on a decision, which can make the process speedier. However, there is also the risk that one attorney could be making all the decisions, and potentially abusing their position of power, because they don’t have to answer to any of the other attorneys.

Attorneys that act jointly in respect of some matters and jointly and severally in respect of others… …means that their ability to make decisions can be limited depending on what the particular decision is. For example, decisions around the sale of a property may be made jointly, while decisions around daily financial decisions such as managing bank accounts could be jointly and severally.

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Replacement attorneys It’s a good idea to pick replacement attorneys at the same time as when you’re picking your main attorneys for your LPA. Their role is to step in if one of your main attorneys can no longer act for you.

This could be because: • They have died • They have got divorced from the donor or ended their civil partnership.

• They have lost their mental capacity • They have decided to stop being an attorney — sometimes called ‘disclaiming’ or ‘revoking’ an attorneyship.

• They have become bankrupt or subject to a debt relief order — this only applies to property and financial affairs LPAs.

What powers should you grant your attorneys?

The powers that you give your attorney can vary depending on the whether it’s a finance and property LPA or a health and welfare LPA. You may stipulate within each LPA what they can and can’t do, or whether they can act, but only in certain circumstances.

These restrictions and conditions need to be laid out clearly so that it is obvious against requests that are more like guidance. Restrictions and conditions are binding and can only be overturned by the court, while guidance is not. However, your attorneys will need to ensure that they are still acting in your best interests if they choose to ignore your guidance.

Ideally, you will trust the person (or people) you pick to be your attorney so you shouldn’t have to name too many specific restrictions.

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Reporting a concern about an attorney – when and how to report If you’re worried that an attorney or deputy is not acting in an appropriate manner, you can report them to the Office of the Public Guardian. They have a Compliance and Regulation Unit that will handle issues relating to things such as financial abuse. You can call them on 0300 456 0300 or email them.

Signs of financial abuse There are some signs that might show financial abuse is taking place.

• A change in living conditions.

• Selling possessions.

• Being unable to pay bills, or an unexplained lack of money.

• Money being taken out of an account without a reason.

• Financial documents being lost without a reason.

• Someone being cut off from family, friends or their social network.

• The carer having more money to spend on things like clothes, travel or accommodation.

• Sudden changes to a bank account or how someone uses it.

• New, recent authorised signers on a client or donor’s account card.

• Money being taken without permission from the adult at risk’s ATM card.

• Changes in how the ATM card is being used (such as more frequently or from different locations).

• Sudden or unexpected changes to someone’s will or other financial documents.

You should not delay when sharing any concerns about the potential abuse or misuse of a LPA. Once reported, the Office of the Public Guardian have the power to investigate the actions of an attorney or deputy, make a report and take action against them. They can also refer any concerns to the Police.

In instances where someone is concerned about the abuse of a Health and Welfare LPA, they may also need to contact the Adult Protection Unit (you can find details of this by contacting your local social services department).

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Chapter 5: Acting as an attorney Someone you know has approached you to be their attorney, but what exactly is involved?

If you’ve been asked to be an attorney in a Lasting Power of Attorney document, you may be unsure what is expected of you. It’s important to realise that it is a position of some responsibility and you need to understand what you’re getting yourself in for. You will need to be happy to make important decisions about either the finances and property, or health and welfare (or both) of your loved one or friend.

Although you can reclaim reasonable expenses, the role is unpaid (unless you are a professional attorney).

If the idea of taking on these lasting power of attorney responsibilities seems like too much — for example, if you do not think you have the expertise, or the energy — you need to let the donor know before the paperwork is signed. If you give up the role at a later date, it could prove difficult for the donor if they’re no longer in a position to make other arrangements. For example, if they’ve lost mental capacity.

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What authority and responsibilities do you have as an attorney?

Your authority will depend on whether you are the attorney for a finance and property LPA or a health and welfare LPA (or both).

Finance and property LPA • Paying bills • Collecting pension or benefits • Managing a bank account

Health and welfare LPA • Making decisions about where the donor lives • Making decisions and organising day-to-day care, diet and what the donor wears.

• The power to accept or refuse life-sustaining treatment on behalf of the donor. This needs to be specified on the LPA form.

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What is mental capacity?

Mental capacity is the ability to make your own decisions. If they lack mental capacity, it means they cannot do any or all of the following: • Understand information given to them.

• Retain information long enough to be able to make a decision.

• Weigh up the information available to make a decision.

• Communicate their decision.

A lack of mental capacity can be caused by dementia, a stroke or brain injury, mental health problem, a learning disability, confusion, drowsiness or unconsciousness because of an illness or the treatment for it or substance or alcohol misuse.

Making decisions for someone who lacks capacity When it comes making a decision for someone who lacks capacity, this can vary from day to day, and from person to person, and even after a LPA has been registered you must assume that the donor has the capacity to make decisions themselves unless you establish that they can’t.

In the case of dementia, mental capacity can fluctuate. You can have ‘good’ days and ‘bad’ days, where on one day, the person may seem very lucid and able to make decisions, while on other days they can’t.

It’s important that you look at each decision, and assess the person you’re making for on a “case-bycase” basis. And don’t assume that because they are unable to make a decision about whether they should be selling their house, that they cannot make a decision on what they want to eat or wear that day.

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Are you worried about mental capacity?

We have experts who can assess you and provide you with a certificate to confirm that you or a loved one has mental capacity. Please visit www.unforgettable.org/lastingpowerofattorney for more information.

Duty of care and acting in best interests As an attorney, you need to remember that your primary duty is to act in the best interests of the person with dementia. If you fail to do this, you may have to be prepared to explain your actions if a complaint is made against you.

The Mental Capacity Act 2005 contains Codes of Practice which set out the duty of care of an attorney when making decisions on behalf of the donor, and include: • The promise to carry out directions that the donor has made in their LPA • A duty not to delegate your powers under the LPA unless the LPA says you can • Not to benefit yourself but to benefit the donor • A duty of good faith by acting with honesty and integrity • Keeping the donors affairs confidential unless the donor has specified otherwise • Complying with directions from the Court of Protection • Not giving up your role without discussing it with the donor first if possible When taking into account the best interests of the donor, you need to think about their past and present wishes, their beliefs and values, any views they’ve expressed in the past, the views of family members and carers, the possibility that the donor may regain their capacity and any other factors that may be specific to the person’s circumstances.

Cost and payment for acting as an attorney You can’t be paid for being an attorney (unless you are a professional such as a solicitor), however, you can claim expenses while acting as an attorney. You’ll need to keep your receipts and invoice the donor and you can claim for travel costs, stationery, postage and phone calls.

However, if the person you’re acting as an attorney for is family (for example, your mother, father or spouse), you may feel charging them for expenses is perhaps inappropriate.

You will also need to ensure that you keep up-to-date accounts and records that are separate to your own accounts.

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Using solicitors and professional organisations as attorneys Some people choose a professional attorney, such as a solicitor, for their financial LPA. If you do this, you must name an individual. You can’t just give a job title or the name of a firm. Professional attorneys usually charge fees, so find out what they will be and make sure you add instructions to your LPA about what you’ve agreed to pay them.

If you have very complicated financial affairs, or you don’t have anyone suitable to manage your finances for a property and financial affairs LPA, then you may want to use a trust corporation as an attorney. This is usually a commercial bank or firm of solicitors. If you do this, find out what fees they’ll charge and get legal advice from another solicitor.

You cannot use a corporation to act as an attorney for a health and welfare LPA.

How to find out if someone has an attorney or deputy acting for them If you’re not sure if someone has an attorney or deputy acting for them, you can find this out by contacting the Office of the Public Guardian. You will need to complete an OPG100 form, which will allow you to search the register for free.

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Using Lasting Power of Attorney with a bank If you are the attorney for a Finance and Property LPA, you will need to deal with various financial issues of the person with dementia. This could be either when the person still has mental capacity, or only once they have lost mental capacity and the ability to make decisions.

You will not be able to start dealing with a bank on behalf of someone who has set up a LPA until it has been registered with the Office of the Public Guardian (turn to page 31 for more information on how to do this).

The bank or building society will need to see the following things before you can start to manage the financial affairs: • The filled in and signed LPA form, registered with the Office of the Public Guardian (OPG). This must be the original document or a copy which the OPG has stamped every page of and which the donor or a solicitor has signed every page of to confirm that it is a true copy of the original.

• Proof of the attorneys’ and the donor’s names and addresses (for example passport, driving licence, utility bills).

When using a Finance LPA, there is a distinction between the powers you will have if the person still has capacity, and the powers you have once they have lost capacity, and you’ll need to make it clear each time you come to use the LPA. For example, if they still have capacity, they may still be able to write cheques and receive statements and correspondence, but if they lack capacity, everything (including all letters and correspondence) should be dealt with by the attorneys.

If the person with dementia has multiple bank accounts, this process will have to be done at each bank.

Different banks will have different policies on what you can and can’t do as an attorney and when the person has capacity or doesn’t. Most will give you telephone and online access to the donor’s account, as well as give instructions in branch and sign cheques. However, this can vary.

You can apply for a new ISA on behalf of the donor, as well as opening a new savings account, but borrowing is discouraged.

Research carried out by the consumer website Which? (January 2015) has shown that not all banks will give telephone or online access to power of attorney accounts. In fact, there can be inconsistency about the availability of a debit card or an overdraft facility depending on where the bank account is held. If any of these facilities are important to you, check with the different banks to establish what access they offer. If your donor’s bank won’t offer them, you might have to think about moving the account to one that does.

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Joint accounts If you have a joint account with someone who has dementia and who has lost mental capacity, the bank or building society can decide whether or not to temporarily restrict the use of the account to essential transactions such as living expenses, residential care bills or medical costs. This could be restricted until a deputy has been appointed or a power of attorney has been registered. This is a good reason why you should set up a LPA before the person with dementia loses mental capacity. If a LPA or Enduring Power of Attorney is already in place, the bank should allow the attorney (and the joint account holder with capacity) to use the account.

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Chapter 6: Filling out and completing a LPA Ensuring that a Lasting Power of Attorney covers off all areas requires that you fill it out carefully and thoughtfully. Here’s what you’ll need to consider…

In order to first set up a Lasting Power of Attorney, you will need to download and fill out the forms. If you don’t have internet access or a computer, you can request for the forms to be posted to you by calling the Office of the Public Guardian on 0300 456 0300.

How long does it take to fill out a LPA form?

There are two different forms, depending on whether you’re filling out a property and finance LPA or a health and welfare LPA. If you’re looking to set up LPA for both of them, you’ll need to download both forms. You can either fill out the form online, and then print it, or print the forms and fill out by hand. In both cases the forms will need to be signed by particular people and then sent off to the Office of the Public Guardian.

Each form has 15 different sections. There are also continuation sheets that you must fill in if there is extra information you need to include that does not fit onto the form. You must use the correct continuation sheet for the section that you are filling in. One sheet provides space for you to nominate additional attorneys if that’s your decision. The other sheet lets you include information on how you would like your attorneys to make decisions for you including your preferences and instructions.

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The good news is that the forms come with guidance notes, which will be helpful while filling them out.

It probably won’t take longer than a few hours or so, but this will depend on whether you’re getting any help from anyone and how detailed the instructions and preferences are. Also, because the forms require various other people to sign them, including the attorneys, witnesses and certificate providers, they may end up being filled out over a couple of days, unless you can get everyone in the same room at the same time.

Need help with your Lasting Power of Attorney document?

Find out how Unforgettable can help you create a legally binding document for free, with additional support from £79, by visiting www.unforgettable.org/lastingpowerofattorney Who needs to sign a Lasting Power of Attorney?

The donor This is the person for whom the LPA is being created for. They need to have mental capacity when they sign the form otherwise it is invalid.

All named attorneys Whether you have one attorney, or four, you will need to get all attorneys to sign the LPA forms.

Witnesses These are people who sign the LPA form to confirm that they witnessed either the donor signing and dating the LPA form; or the attorney(s) signing and dating the LPA form. Somebody must act as a witness when you and your attorney sign the LPA form. The person who witnesses your signature must be over the age of 18 and cannot be one of your attorneys or replacement attorneys. Your certificate provider can act as your witness.

Certificate provider The certificate provider is someone who can certify that you have the mental capacity to make a LPA, that you understand what it is and that you are making the decision yourself and are not being pressured into it.

Picking a certificate provider A certificate provider can be a professional, such as your doctor, social worker or a solicitor, or someone who has known the donor for two years, but is independent, that is, isn’t a family member or an attorney and who will not benefit from the LPA.

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Professionals: This could be: • A healthcare professional such as a GP • A solicitor, barrister or advocate • A registered social worker • An independent mental capacity advocate

Who you can’t choose: • An attorney or replacement attorney for the LPA you’re filling out, or one that’s already used in a different LPA. • A member of your attorneys’ families • An unmarried partner of yours or any of your attorneys • A business partner of yours or one of your attorneys’ business partners • An employee or one of your attorneys’ employees • An owner, manager, director or employee of a care home where you or a member of your family lives • Anyone working for a trust corporation appointed as an attorney in a financial decisions LPA. If you’re not sure if someone can be a certificate provider, contact the Office of the Public Guardian on 0300 456 0300 or email customerservices@publicguardian.gsi.gov.uk

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The difference between preferences and instructions When writing your LPA, you will have the opportunity to state particular preferences and instructions for your attorneys. This is a useful time to get professional advice, as complicated or badly worded instructions or preferences can make a LPA unworkable.

Preferences These are what you’d like your attorneys to think about when making decisions but they don’t necessarily have to follow them. When writing preferences, it makes sense to avoid using words such as ‘must’ and ‘shall’ and instead use language such as ‘prefer’ and ‘would like’.

Instructions This is what your attorneys MUST do if they’re acting for you. When writing your instructions, use words such as ‘must’, ‘shall’ and ‘have to’. Instructions can sometimes cause problems, so it’s important that you read through them for sense and likelihood that your attorneys will be able to carry them out. Many legal experts would try to dissuade people from making many, if any, instructions in their LPA because they are extremely restrictive and can cause more problems than solve them.

Examples of preferences for both types of LPA ‘I’d prefer to live within five miles of my sister.’

‘I’d like my pets to live with me for as long as possible. If I go into a care home, I’d like to take them with me.’

‘I would like to maintain a minimum balance of £1000 in my current account.’

‘I would like to donate £100 each year to the Alzheimer’s Society.’

In both cases, the donor has clearly stated what they’d like to happen, but, if for any reason they can’t be completed, for example, the only care home available can’t accept pets, then the attorneys will know that the person with dementia won’t mind too much.

Examples of instructions for both types of LPA ‘My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.’

‘My attorneys must ensure I am given only vegetarian food.’

‘My attorneys must consult a financial advisor before making investments over £10,000.’

‘My attorneys must instruct a tax accountant to prepare my annual tax return.’

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What is a statement of wishes?

A Statement of Wishes is a document which forms part of the Unforgettable dementia-specific LPA forms. www.unforgettable.org/lastingpowerofattorney It covers all the decisions you may need to make when caring for someone with dementia. It sits in addition to the Lasting Power of Attorney forms and acts as a guidance to those caring for you. It is different to the “Preferences” section of the LPA as it provides you with more space to go into detail about how you wish your attorneys to act once the LPA has been registered. Because it is a separate document to the LPA, it can be updated and amended even after the LPA has been registered if necessary.

A Statement of Wishes is not legally binding. Your attorneys should bear in mind your wishes when making decisions, but are not legally bound to follow them if they think that there is a better alternative for you.

Why is a Statement of Wishes a useful document?

Unforgettable have created this unique document to sit alongside the LPA documents as a guide for attorneys when making decisions. We prefer to write a separate document rather than writing them in the Lasting Power of Attorney form because you can update the Statement whenever you want. You would not be able to do this if you write your wishes in the LPA and then register it. This is because once registered, you cannot change a Lasting Power of Attorney. If you did want to change your Preferences, you’d have to create a whole new LPA, which would incur additional costs.

The Statement of Wishes document that forms part of the Unforgettable LPA documents provides a basis for you to create a more complete version for you. It is in Microsoft Word format, so you can edit it further.

What topics might you cover in a Statement of Wishes?

Health and care: • Medical treatments • Anti-psychotic drugs • Drug trials • Transfusion and therapy

Welfare: • Care home or sheltered care • Personal and intimate care • Use of monitoring and tracking devices

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Financial Affairs: • Cash • How should your attorneys manage your financial affairs?

• Gifts of money • Preferences about how your money is invested In a recent survey carried out by Unforgettable about setting up a Lasting Power of Attorney, we discovered that 41% of people who had already set up a LPA did not feel it covered all the important decisions that they needed to make when caring for someone with dementia.

In fact, they wanted to see guidance on covering off a range of dementia care-related topics, which included: • Going in to a care home (78%) • Who would you be happy, or not happy, to provide intimate care (61%) • The use of anti-psychotic drugs (43%) • The use of trackers (35%) • The use of CCTV (30%) • Enrolling on drug trails (26%) That’s why Unforgettable have created a LPA service that helps you include a Statement of Wishes that will cover off these topics.

Find out more about this here www.unforgettable.org/lastingpowerofattorney

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Instructions around gifts This is an area that needs some thinking about because there are strict limits on the kinds of gifts attorneys can give on behalf of the donor. They can gives presents for what is known as ‘customary occasions’ – birthdays, weddings, religious holidays – and they can donate to charities that you previously gave to.

However, attorneys cannot authorise trust funds for grandchildren, payment of school fees for grandchildren, interest-free loans to family and maintenance for any family member other than a wife, husband, civil partner or child under 18.

Instructions around fees If you’re using a professional as one of your attorneys, you will need to write in your LPA what you’ve decided to pay them. If you’re also paying a non-professional attorney (such as a husband or wife), then this will need to be stated, too. Many non-professional attorneys will be happy to act for you without being paid, but they’ll still be able to claim expenses such as travel or postage.

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For example: ‘I want each of my attorneys to be paid £XX per year for their services under this LPA. My attorneys will stop being paid when my money drops to £XX.’

Signing your LPA Once you have filled out the different sections of the Lasting Power of Attorney, it will need to be signed, and in the correct order.

1. The donor must sign first. A witness must watch you signing the LPA and sign straight after you.

2. The certificate provider must sign next. This is the person who confirms that you understand what you’re doing and you’re not being forced to do it. They will sign section 10 of the form and must sign after the donor but before the attorneys.

3. The attorneys and replacement attorneys must sign next. Their signatures must be witnessed (and the witness can’t be the donor). However, the attorneys and replacement attorneys can witness each other’s signatures.

People to notify before the LPA is registered Before it is officially registered, the Office of the Public Guardian will wait four weeks while any people that are notified have a chance to object to anything with the LPA. You can have up to five people listed as ‘people to notify’. Ideally, there’ll be people who know you well and able to raise concerns about your LPA if necessary. This might be the case if they thought you were making the LPA under pressure, or if fraud was involved. It’s basically another safeguarding mechanism but it is an optional part of the LPA. You will list the people to notify in section 6 of the LPA. Then, the person applying to register the LPA will fill out separate forms (LP3) which will be sent off to these people just before sending the LPA form to the Office of the Public Guardian.

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Once they receive these notification forms, they have three weeks to raise any concerns. These concerns can’t be simply because ‘they don’t like it’. They will need to be based on ‘factual’ or ‘prescribed’ grounds.

Factual objections This means the LPA is factually incorrect. For example, the donor mentioned or one of the attorneys is now dead, or one of the attorneys is bankrupt or lacks mental capacity.

Prescribed objections This could be objections based around your own thoughts or opinions, such as your belief that the donor doesn’t have the mental capacity to make a LPA, there was fraud (e.g. someone faked a signature), or the donor was pressured to fill out the LPA. If the ‘people to be notified’ are happy with the LPA, they don’t have to do anything.

Need help with your Lasting Power of Attorney document?

Find out how Unforgettable can help you create a legally binding document for free, with additional support from £79, by visiting www.unforgettable.org/lastingpowerofattorney

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Chapter 7: Registering and using a LPA Now that you’ve filled out the forms, here’s what you’ll need to do next in order to register and starting using a LPA. A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian (OPG). This can be done by either you (the donor) or one of your attorneys (if they’re acting severally) or all of your attorneys (if they’re acting jointly).

You don’t have to register a LPA straight away, but it’s a good idea to send it off as soon as it’s filled out as that means the OPG can raise any issues with mistakes and they can be corrected while you still have capacity. If you fill out the form and then forget about it for a year, the person you care for may have lost their mental capacity. If there are any mistakes with the form, the LPA will be invalid and you would have to start from scratch and become a deputy through the Court of Protection.

How much does it cost to register a Lasting Power of Attorney?

A LPA costs £110* and you will need to pay this fee for each type of LPA — so £110 for a Finance and Property LPA and £110 for a Health and Welfare LPA. You can pay online through the government website, via credit or debit card (although if you choose this option, you’ll need to leave a contact number and be called so the card details can be taken over the phone) or via cheque.

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Exemption and reduced fees You may be entitled to a reduction or exemption from the LPA fees, and this will depend on your financial circumstances. You’ll need to fill out a specific form and provide evidence of your eligibility.

The donor of the LPA may be eligible for exemption if they receive any of the following benefits: • Income support • Income-based Employment and Support allowance • Income-based Jobseekers Allowance • Guarantee Credit element of State Pension Credit • Housing benefit • Council tax reduction/support • Local housing allowance • A combination of Working Tax Credit and at least one of; Child Tax Credit, Disability Element of Working Tax Credit, Severe Disability Element of Working Tax Credit.

Bear in mind that it is only the donor who can be eligible for reduced fees. If an attorney receives any of these benefits, that won’t have any bearing on eligibility for discounted fees.

Proof that the donor is receiving the above benefits (such as a letter) will need to be sent alongside the other LPA forms.

The following benefits aren’t included in exemption: Disability Living Allowance, Invalidity Benefit, Personal Independent Payment.

If you or the person you’re helping to create the LPA for has a gross annual income of £12,000 before tax, they may be eligible for a 50% reduction of the fee. Once again, you’ll need to send proof, such as a P60, three months consecutive wage slips or a self-assessment tax return and calculation.

How to start using a Lasting Power of Attorney You cannot start using a LPA until it has been registered, however, even once it’s registered, there may still be limitations on when you can use it.

Finance and Property LPA You can start using this type of LPA as soon as it is registered UNLESS the donor has stipulated in the form that this is not the case. If they haven’t given you permission, you will only be able to use the LPA once the donor has lost mental capacity.

Having your attorney(s) able to use a Finance and Property LPA while you still have mental capacity can be especially useful when you have dementia as you may be confused or unsure about certain financial aspects and want the support of your attorney when making decisions on things like selling your home or investing your money, but still be able to manage a current account or daily living expenses.

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Health and Welfare LPA You can ONLY start using this type of LPA once the person has lost mental capacity. Once the Office of the Public Guardian has received all the paperwork, and waited up to four weeks to see if any of the people notified have any objections, it will start to be processed. The OPG will check that the LPA • Is legally correct • Has no errors If everything is correct and there are no objections, the OPG will register it and post it back, stamping the form to show it’s valid and ready to use. This is the official LPA document.

*Last reviewed February 2016. These prices refer to the cost of LPA in England and Wales.

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Chapter 8: Storing, amending and ending a LPA The LPA is signed and sorted, but here’s what you need to know about storing changing, or cancelling it.

Storing a Lasting Power of Attorney document Once you have received your Lasting Power of Attorney back from the Office of the Public Guardian, you will need to ensure it is stored safely and correctly.

If you need to use the LPA to start making decisions on behalf of someone with dementia, you will need to provide them with either the original (which isn’t recommended) or a copy that has been signed and certified as an exact copy. The donor can sign and certify themselves so long as they have mental capacity. If they don’t, a solicitor will need to do this. You can request official copies of the LPA from the Office of the Public Guardian for £35.

We recommend that you keep both the original and any copies somewhere that is safe and accessible for the attorneys. While a Health and Welfare LPA may not have to be used too often, a Finance and Property LPA may be requested at regular intervals when dealing in this area, so it’s a good idea to have several copies ready in case the institution fails to return the original.

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Amending a LPA document Once you have sent off a complete LPA form to the Office of the Public Guardian, you cannot make any amendments. It’s why it is EXTREMELY IMPORTANT that you check through the form before you send it off.

If there are large amendments that need to be made, you’ll be better off downloading a completely fresh copy of the forms and starting again. For very small amendments (such as spelling mistakes) you can cross through them, write the correct working and then you AND the witness needs to initial them.

If you need to change the LPA after it has been registered, you will need to complete a brand new form and pay the cost of a registration fee, so this is best avoided.

Ending a Lasting Power of Attorney document You can cancel a LPA if you’re the donor at any point, so long as you have mental capacity. If the LPA is registered, you will need to write a Deed of Revocation, which essentially revokes the original agreement. Like the original LPA, it will need to be signed, dated and witnessed, and then sent off to the Office of the Public Guardian. You should also alert all of your named attorneys that you are cancelling the LPA. A Lasting Power of Attorney may also end if…

• You die. Your affairs will be looked after by your executors or personal representatives from that point, not your attorney.

• An attorney dies • Your attorney loses mental capacity • An attorney in a Finance and Property LPA becomes bankrupt or subject to a Debt Relief Order The LPA will continue if you have replacement attorneys or you have given the attorneys the power to act severally or jointly and severally.

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Chapter 9: What could go wrong when making a LPA? Here are some potential pitfalls to look out for when making a LPA. It’s really important that a Lasting Power of Attorney is filled out correctly, as if it’s rejected or there’s a problem, you may need to reapply, which can be an expensive process when you’re paying £110 each time. It cannot be amended once accepted.

Why might a LPA be rejected?

Form is signed out of order A Lasting Power of Attorney needs to be signed and dated in a very specific order. If one person signs and dates before another and they shouldn’t have, the Office of the Public Guardian will spot the issue (because the dates will be out of order) and reject it.

Too long a gap between the different people signing If one set of people sign the LPA and then there is a long gap before the next people sign it, the OPG may reject it. While there’s no specific required time frame in which to sign, they recommend you do it within a few days of each other.

Someone objected to the LPA If you have chosen to include ‘people to be notified’ when filling out the LPA, they will have around three weeks in which to raise any concerns about the document. If they do, the LPA will be rejected.

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Using invalid or incompatible restrictions and conditions As part of your LPA, you can fill out preferences and instructions for your attorneys. However, if the instructions are incompatible with the way your attorneys can act (that is, jointly, severally, jointly and severally) then the whole LPA will be rejected.

For example, if you have appointed your attorneys to act jointly and severally, this means that they can choose to act together or individually and they must all be free to act at any time. So if you have appointed your attorneys in this way, you cannot then contradict it by saying that they must all act together for particular transactions.

Making provisions for gifts that they don’t have authority for Within the terms of a LPA, attorneys can make gifts to other family members on ‘customary occasions’ such as birthdays or weddings. However, they cannot make gifts in areas such as school fees, trust funds or interest free loans to family members. If the donor includes a provision which potentially authorises the attorneys to make gifts which are not allowed by section 12, it will be invalid.

Asking attorneys to act for someone other than you You cannot put into your LPA that your attorneys need to act on behalf of someone else. They act only for you. For example, if you state in the LPA that the attorneys must ‘maintain the health and welfare needs of XXX’, that would invalidate the LPA. In some cases, the Office of the Public Guardian will ask for the donor’s consent to severance. This basically means that they will tell the applicant that the donor can either accept that the invalid request is removed completely from the LPA or, they make a new LPA without that particular provision, or with a provision that is modified. Not surprisingly, not many people choose the latter as they’ll have to pay the registration fee again. Consenting to severance will speed up the application, and mean you or the attorney don’t have to go through all the usual formalities again.

For pets LPAs can include instructions and preferences for pets, for example how you would like them looked after, but they wouldn’t be legally binding. So you can’t ensure that your pet is looked after in the way you want, but you can ask your attorneys to consider your wishes.

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Issues with banking If you have set up a Finance and Property LPA, you should be able to use it to manage the financial affairs of the person with dementia. However, some people have reported issues around getting access to things such as telephone and internet banking, with some banks following security requests and questions so closely to the letter, and with so little knowledge of what and why a LPA may have been put in place, that it makes it very difficult to then use it when needed.

Our advice would be to ensure that you have all necessary ID and proof of address ready when you go into the bank, as well as the registered LPA documentation, to ensure you have all that you need.

Many banks are taking steps to become more dementia-aware, both in the way they handle customers with memory problems, and in their interpretation of banking rules when it comes to Lasting Power of Attorney, so hopefully this won’t be a problem for much longer.

Need help with your Lasting Power of Attorney document?

Find out how Unforgettable can help you create a legally binding document for free, with additional support from ÂŁ79, by visiting www.unforgettable.org/lastingpowerofattorney

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Chapter 10: Deputies and the Court of Protection If you haven’t managed to set up a Lasting Power of Attorney before someone loses capacity, you will need to become a Deputy. Here’s what’s involved…

If, for whatever reason, you do not manage to set up a Lasting Power of Attorney or do not already have an Enduring Power of Attorney in place, and you need to start managing someone’s finances, property or personal welfare because they have lost mental capacity, you will need to apply to become a Deputy.

What is a deputyship?

Deputyship is very similar to Lasting Power of Attorney except in the way it is set up and, more importantly, the costs and time it takes to set up. Deputyship is a lot more expensive than Lasting Power of Attorney.

It is set up through the Court of Protection, and it is them that have the final say on who will be the Deputy for the person who has lost their capacity. In most cases, they will choose a family member or close friend, but this is no guarantee. A Deputy needs to be 18 years or over.

Much like a LPA, there are two types of deputyship; property and financial affairs and personal welfare.

You can apply to be one type of deputy or both, but in both cases, it is the Court of Protection that will decide how the deputy can act and the powers they will have.

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The application consists of four different forms, one of which is a form signed by a medical practitioner (such as a GP or psychiatrist) who can provide evidence and confirmation that the person lacks mental capacity. This is known as form COP3. There are also other forms that will need to be filled in providing details about the person applying to be Deputy and the person who lacks capacity. These forms are then all sent off to the Court of Protection.

Name of form

What it’s used for

Application form (COP1)

To make initial application

Assessment of capacity form (COP3) To confirm lack of mental capacity Deputy’s declaration (COP4)

Where you share your details including any issues around bankruptcy/debt relief orders and declare that you’ll act for the person without mental capacity

Information form (COP1A)

If you’re applying to be a property and affairs deputy

Information form (COP1B) Witness statement form (COP24)

If you’re applying to be a personal welfare deputy If you can’t get a completed assessment of capacity form

You should keep a copy of every form you fill in.

The Court will assess whether the person applying to be a Deputy is suitable, and then provide a court order defining what their powers will be. This is the document that you will need to show in order to start making decisions for someone. You do not usually need to appear in court, as it can all be done through the post.

If there is no relative who can act as a deputy, the Court of Protection may appoint a professional, such as a solicitor or accountant, who will no doubt ask for a fee to act on behalf of the person.

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Duties of a deputy Much like becoming an attorney, it’s vital that you consider the various responsibilities involved with being a deputy. These include: • Ensuring you act with due care, skill and in good faith • Not taking advantage of the person with dementia or the situation they are in • Not delegating your duties to another person (unless authorised) • Respecting the person’s confidentiality • Complying with the directions from the Court of Protection • Keeping accounts (if you’re a Property and Finance deputy) and keeping their money and property separate from your own.

• Writing an annual report which gives the Court information about the decisions you’ve made on behalf of the person with dementia, including details of the financial transactions of the previous year, such as bank statements, and information about the person’s affairs.

How much does it cost to set up a Deputyship?

The cost of setting up as a Deputy for someone is probably the biggest reason for getting organised with a Lasting Power of Attorney. The fee for each type of LPA is £110. The application fee to become a Deputy is £400 and you will need to pay this twice if you are to become a Property and Finance Deputy and a Health and Welfare Deputy.

That’s not the only cost. You will need to pay an annual supervision fee, which is either £35 (if you are a financial deputy and managing funds of £21,000 or less) or £320 (if you are responsible for managing funds higher than £21,000). There is also a £100 assessment charge.

If the case needs to go to a hearing (rare, but it can happen), there will be a £500 fee. Plus, there may also be solicitor fees if you choose to use one when applying to be a deputy, and these can be as much as £1000.

If you are on a low income, or in receipt of benefits, you may eligible for reduced or waived fees.

Security bonds One of the first things you’ll need to do once you have become a Property and Finance Deputy is to pay a security bond.

The bond is basically an insurance policy to protect the finances of the person you’ve become a Deputy for, in case you mismanage them. The bond is determined by how much money you will have control of, and this will include non-cash assets such as property.

As with other fees, you can either pay the bond from your own money and be reimbursed, or from money you hold for the person (although the latter is less likely as that’s the very reason you’re setting up the Deputyship).

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There will be an annual premium for the bond (much like other insurance policies) which is basically a payment you make each year and which will continue for as long as the deputyship is in place.

How long will it take to set up Deputyship?

This can depend on a number of factors, including whether permission is required, the time taken to notify all interested parties that you have made an application, whether the court requires more information before making a decision and whether anyone opposes the application.

It usually takes two or three months for someone to be appointed as Deputy. There can be delays prior to sending the application to Court as the medical evidence can sometimes take a long time to get hold of depending on the medical practitioner involved.

If you need to become a Deputy as a matter of urgency, you can make an urgent application (sometimes called an ‘interim application’) if you’re applying or have applied to become the other person’s deputy, but your deputyship hasn’t been approved yet and you need to make a specific decision on the other person’s behalf immediately.

The urgent application must be for a specific decision that needs to be made without delay, for example, to get money from the person’s bank account to pay outstanding nursing home fees.

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What happens in Scotland and Northern Ireland?

It’s important to remember that the above information only applies for Deputyship in England and Wales. If you live in Scotland or Northern Ireland and you’re applying for control of someone’s finances when they don’t have power of attorney in place, you’ll need to set up Guardianship or Controllership powers.

Guardianship (Scotland) This is set up in a very similar way as Deputyship. You will need to apply to the Office of the Public Guardian for Scotland, and you can be either a financial guardian, welfare guardian or a combination of financial/property and welfare.

Duties will be similar to a Deputyship, namely, to act in the best interests of someone lacking capacity and carry out their duties properly within the scope of their powers. There are also fees, and they can vary depending on the volume of money you will be managing.

Controllership (Northern Ireland) This is set up through the Office of Care and Protection. You can get a relative to become a controller for someone who lacks capacity, or a professional such as a solicitor.

As a controller, you will have the authority to manage financial affairs, according to the duties set out by the court. This includes managing income to ensure needs are met and bills are paid.

Fees for a Controllership order are £200 for the commencement fee and £115 for the controllership order. There is also an annual fee that is between £250 and £350.

For more information on how Power of Attorney differs in Scotland and Northern Ireland, turn to pages 46 and 49.

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Chapter 11: Power of Attorney (PoA) in Scotland If you are looking to set up a LPA for someone living in Scotland, it’s worth remembering that some aspects of the agreement and document are different to the one for England and Wales.

If you or your loved one is living in Scotland and you need to create a Power of Attorney for them, the version you make will be slightly different to one you would make if you were living in England or Wales, although it essentially provides the same powers.

It might be a good idea to read the information provided in the rest of our LPA articles, and then read this article so you’re aware of the few differences.

What’s different?

Granter v Donor The person who gives permission to set up a power of attorney in Scotland is known as the ‘Granter’.

In England and Wales, they are known as the ‘Donor’. However, like England and Wales, the person (or people) acting for the Granter are known as attorneys.

Continuing Power of Attorney & Welfare Power of Attorney In England and Wales, there are two types of power of attorney which you can set up. These are Property and Finance LPA and Health and Welfare LPA.

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In Scotland, you set up a Continuing Power of Attorney if you wish to look after the property and finances of someone. This will mean you can manage bank accounts or sell a house. This can be arranged to be effective immediately (before the Granter has lost capacity) or only once they are unable to make decisions.

A Welfare Power of Attorney is much the same as in England and Wales, in that it lets someone make decisions about health and welfare, including where you live, medical treatment and personal care. This will only come into force once you lose mental capacity.

Adults with Incapacity (Scotland) Act 2000 The law that governs power of attorney and mental capacity in Scotland is known as Adults with Incapacity (Scotland) Act 2000. Sometimes it is just called ‘the Act’. It’s designed to protect and safeguard people who have or may go on to lose capacity. A similar version in England and Wales would be the Mental Capacity Act 2005.

The Act states that a person lacks mental capacity if they are unable to make, communicate or understand decisions. It stipulates that mental capacity can change from day to day, as can the ability to make decisions, and an attorney must always take into account ‘present and past feelings and wishes as far as possible’.

Age limits for attorneys In England and Wales, the attorneys need to be at least 18 years old in order to take up their role. In Scotland, they have to be over 16 years old. However, other attorney prerequisites remain the same, including being financially soluble, responsible and able to act in your best interests.

Substitute attorneys In Scotland, this is the name given for replacement attorneys. This is someone who can take up the role of attorney if someone steps down or is no longer able to act as an attorney.

The fees Registering a Power of Attorney document has a different fee in Scotland compared to England in Wales. These are: Submitting a Power of Attorney document:

£73

Registering a Deed of Amendment to a POA:

£73

Duplicate or replacement certificates:

£24

Audit of accounts for a Continuing Power of attorney:

£115

Guardians v Deputies In Scotland, if there is no Power of Attorney set up and the person with dementia has already lost their mental capacity, then the Court of Protection appoints a Guardian to manage their affairs (in England and Wales they are called a Deputy).

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What’s the same?

Powers and responsibilities The Power of Attorney laws in Scotland are designed to help you manage and look after the interests of someone who can no longer make decisions for themselves. They cover off both finance and property, and health and welfare.

As with England and Wales, acting as an attorney means making decisions that follow similar principles as it is a position based on absolute trust. They must benefit the person, take their wishes into account, and be the least restrictive ones possible. Relevant people must be consulted if appropriate and the person who you’re making the decision for must also be encouraged to partake if possible, particularly if you think they may regain some capacity on another day.

The process Making and registering a Power of Attorney is handled by the Office of the Public Guardian for Scotland. This is a different body to the one in England but it essentially manages the same issues.

You can either choose to fill out the forms yourself, or you can receive help and advice from a solicitor.

The attorneys You can set up joint attorneys who can make decisions about your life, and you can also appoint different people to be attorneys for finance and others to be attorneys for personal welfare.

What happens if the donor moves from England to Scotland? Does the Power of Attorney still hold?

A Power of Attorney that was set up in England is recognised in Scotland, and for some actions the English document itself may be sufficient. However if you wish or need to enforce its use in Scotland, the English document needs to be registered in Scotland. Permission for this is granted by the local Sheriff Court then registration is with the Office of the Public Guardian for Scotland. This will then give the document the same status as an original Scottish Power of Attorney.

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Chapter 12: Power of Attorney in Northern Ireland If you are looking to set up a Power of Attorney for someone living in Northern Ireland, it’s worth remembering that some aspects of the agreement and document are different to the one for England and Wales.

If you or your loved one is living in Northern Ireland and you need to create a Power of Attorney for them, the version you make will be slightly different to one you would make if you were living in England or Wales, although it essentially provides the same powers.

It might be a good idea to read the information provided in the rest of our LPA articles, and then read this article so you’re aware of the few differences.

What’s different?

The name In England and Wales, there are two types of power of attorney which you can set up. These are Property and Finance LPA and Health and Welfare LPA. However, in Northern Ireland there is only one type of Power of Attorney when it comes to dementia and loss of capacity. This is known as Enduring Power of Attorney and it deals with the control of finance and property. There is no Health and Welfare Power of Attorney in Northern Ireland.

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Enduring Power of Attorney Order (Northern Ireland) 1987 The law that governs power of attorney and mental capacity in Northern Ireland is known as the Enduring Power of Attorney Order (Northern Ireland) 1987. It’s designed to protect and safeguard people who have or may go on to lose capacity. A similar version in England and Wales would be the Mental Capacity Act 2005.

Office of Care and Protection (OCP) This is the organisation that manages Power of Attorney in Northern Ireland. In England and Wales, it is known as the Office of the Public Guardian.

When you register an EPA In England and Wales, you are encouraged (both as a donor and attorney) to register the Lasting Power of Attorney as soon as it is signed and if possible, before the person has lost mental capacity.

However, in Northern Ireland, the general practice is that you do not apply to register the EPA until just as or just after the donor becomes mentally incapable.

Attorneys can begin acting on behalf of a donor with the donor’s consent in financial matters as soon as the document is signed and witnessed, i.e. on a general capacity, unless the EPA specifies otherwise. In some cases, donors will stipulate in the EPA that they don’t want the power to be used until after it is registered.

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Notification In England and Wales, it is optional whether you wish to notify anyone that you are filling out and registering a Lasting Power of Attorney. They then have the choice on whether they wish to object to the LPA or not.

In Northern Ireland, attorneys must give notice of an intention to register an EPA, to at least three relatives of the donor. There is a strict order of who should be notified first, which is: • The Donor’s spouse • The Donor’s children • The Donor’s parents • The Donor’s brothers and sisters, whether of the whole or half blood • The widow or widower of a child of the Donor • The Donor’s grandchildren • The children of the Donor’s brothers and sisters of the whole blood • The children of the Donor’s brothers and sisters of the half blood • The Donor’s uncles and aunts of the whole blood • The children of the Donor’s uncles and aunts of the whole blood If the Donor doesn’t have three living relatives who fall into the above list, then this should be noted on the application. If the attorneys also happen to be notifiable relatives, you can count them as having been notified.

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Controllers v Deputies In Northern Ireland, if there is no Enduring Power of Attorney set up and the person with dementia has already lost their mental capacity, then you will need to set up what is known as a Controllership, through the OCP. Much like deputies, Controllers can be a friend or solicitor, however other similarities include it being far more expensive and time-consuming than an EPA, so it’s always worth setting up an EPA before someone loses mental capacity if possible.

The fee Registering an Enduring Power of Attorney in Northern Ireland costs £115 compared to £110 in England in Wales. However, you will only ever register one Power of Attorney as there is no agreement covering Health and Welfare in Northern Ireland.

What’s the same?

Age limits for attorneys In England and Wales, the attorneys need to be at least 18 years old in order to take up their role and this is the same for attorneys in Northern Ireland. Other attorney prerequisites also remain the same, including being financially soluble, responsible and able to act in best interests.

Powers and responsibilities The Enduring Power of Attorney laws in Northern Ireland are designed to help you manage and look after the interests of someone who can no longer make decisions for themselves.

As with England and Wales, acting as an attorney means making decisions that follow similar principles as it is a position based on absolute trust. They must benefit the person, take their wishes into account, and be the least restrictive ones possible. Relevant people must be consulted if appropriate and the person who you’re making the decision for must also be encouraged to partake if possible, particularly if you think they may regain some capacity on another day.

Acting jointly and severally Much like in England and Wales, attorneys on a Northern Irish EPA can be instructed to act jointly, severally or jointly and severally. If the attorneys are only allowed to act jointly, this means they must all act together when making decisions for the donor.

In an EPA, you can provide general authority and specific authority. General authority means the attorney can carry out any transactions on behalf of the Donor. A specific authority allows the attorney to deal only with specific aspects of the Donor’s affairs.

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Restrictions and conditions The donor can impose certain restrictions and conditions on what the attorney can do in certain areas, or when the powers can be used.

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Chapter 13: Power of Attorney (PoA): Frequently Asked Questions Confused about Power of Attorney? Here are some of the most common pitfalls and questions…

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a legal document which lets you appoint someone (or multiple people) who you trust to act on your behalf in different areas of your life.

What’s a LPA got to do with dementia?

A Power of Attorney is important for people with dementia because it’s highly likely that someone with the condition will eventually lose the ability to make decisions for themselves. Although the time it takes to reach this point will vary from person to person, unless something happens to them (for example another health problem), we know that they will lose their capacity to make decisions, making it a vital document to set up.

Who should make a LPA? Anyone over the age of 18 can have a LPA, although it tends to be something that doesn’t get thought about until you’re in the later stages of life. However, it’s actually a good idea to set up a LPA as soon as possible, especially if you have a condition which is likely to cause a loss of mental capacity later on, such as dementia.

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In fact, it’s even a good idea for people who do a dangerous job that might cause them to lose mental capacity (for example fireman, construction, tree surgeon), then you should have a LPA ready just in case. This is because they may have an accident at work which could leave them incapacitated (for example, in a coma) and need people to make decisions for them.

Can a married couple have a joint LPA? No. LPAs are personal to each Donor so you will need to set up your own LPA. However, they can be set up at the same time, and by the same solicitor.

What are the different types of LPA? Property and Financial Affairs LPA As the name suggests this type of LPA gives someone the authority to manage your property and money. This could include bank or building society accounts, bills, collecting a pension or benefits and even selling your home.

Health and Welfare LPA This covers areas surrounding your health and wellbeing, including decisions around your daily care (washing, dressing, eating), medical care and treatment or whether it’s time to move into a care home.

It’s sometimes called a Personal Welfare LPA.

How do you make a LPA? You can choose to make a LPA either with or without a solicitor. Many people choose to use a professional to make sure that everything is filled out correctly, but it’s not a requirement. You can download all the forms for each of the types of LPA online and then fill out and post back to the Office of the Public Guardian.

Who should you pick as an attorney on a LPA? The attorneys need to be over 18 and not subject to a debt relief order or declared bankrupt. Other than that, it’s up to you. However, you should pick someone who knows you well, is organised and interested in ensuring that your wishes are met, and most importantly, someone who can be trusted.

Many people pick their spouse, children or siblings, but you can also pick a professional such as a solicitor or doctor.

How many attorneys can you appoint?

There’s no limit to the number of attorneys you can appoint on a Lasting Power of Attorney. Some people only have one, others have more, but the normal number is three or four.

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Can a person refuse to act as an Attorney?

Yes, although it would be better to do this before the LPA is signed and registered. Once it is registered, if the person refuses to act as an Attorney, it is known as ‘revoking’ or ‘disclaiming’ an attorneyship. If the LPA is registered and the attorneys must act jointly (ie all together for all decisions), revoking the attorneyship will invalidate the LPA and a new will have to be made (unless there are replacement attorneys ready to step up). If the attorneys act severally or jointly and severally, then the remaining attorneys can continue to act even if one of them revokes their attorneyship.

What if an attorney dies?

This is similar to the above, that is, if there are replacement attorneys, they can step up to take the place of the attorney who has died. If the attorneys can only act jointly, and there are no replacement attorneys, the LPA will end. A new one can be made if the donor still has mental capacity. If they don’t, a deputyship will need to be set up through the Court of Protection. If you are a replacement attorney and need to step up to be an attorney, you should let the Office of the Public Guardian know that you are now acting as an attorney so the LPA can be updated. You will not be able to act as attorney until this is done.

Can another attorney be added after the LPA has been registered?

No. The only way an attorney could be added is if a new LPA is made and registered, and this can only be done if the donor still has the mental capacity to do so. If this happens, you will need to pay the full fee for the new LPA.

If the LPA is no longer valid can the donor make another?

Only if they still have mental capacity. If they have lost mental capacity since the first Lasting Power of Attorney was made, they will not be able to make another, and a Deputyship or Guardianship will have to be set up instead.

How much is a LPA? The price varies depending on whether you are setting one up in England and Wales, Scotland or Northern Ireland. In England and Wales, it costs £110, in Scotland it costs £73 and in Northern Ireland it’s £115. These fees refer to each type of LPA, so if you are setting up two types (ie Finance and Property and Health and Welfare), you will need to pay the fee TWICE. This won’t apply in Northern Ireland, where they only have one type of LPA.

Do you need to use a solicitor to fill out a LPA? No, but many people do, especially if they have complicated assets, or want to ensure that any restrictions or conditions don’t invalidate the LPA.

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How long does it take to register a LPA? This can vary, but generally it takes around eight weeks altogether but can take as long as 10 weeks and sometimes even longer. This also allows for the time needed to allow for the notification of those in the ‘people to be notified’ section. It’s why it’s so important that you don’t delay when submitting the forms.

Can you cancel a Lasting Power of Attorney?

You can cancel a LPA if you’re the donor at any point, so long as you have mental capacity. If the LPA is registered, you will need to write a Deed of Revocation, which essentially revokes the original agreement. Like the original LPA, it will need to be signed, dated and witnessed, and then sent off to the Office of the Public Guardian. You should also alert all of your named attorneys that you are cancelling the LPA.

What happens if there is no LPA registered?

If, for whatever reason, the donor does not manage to set up a Lasting Power of Attorney or does not already have an Enduring Power of Attorney in place, and you need to start managing their finances, property or personal welfare because they have lost mental capacity, you will need to apply to become a Deputy. Deputyship is a decidedly more expensive, long-winded and involved process than a Lasting Power of Attorney.

Need help with your Lasting Power of Attorney document?

Find out how Unforgettable can help you create a legally binding document for free, with additional support from £79, by visiting www.unforgettable.org/lastingpowerofattorney

Legal disclaimer: Please note that the information provided in this book: • Does not provide a complete or authoritative statement of the law; • Does not constitute legal advice by Unforgettable; • Does not create a contractual relationship; • Does not form part of any other advice, whether paid or free.

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Whatever the stages and whatever the challenge you are facing, we are here to help. We’ll do this by: 1. Highlighting products that you didn’t even know existed which can make life easier every day.

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Creating a Lasting Power of Attorney (LPA) is one of the most important things you can do after a dementia diagnosis. It ensures that as your mental capacity declines, you will be able to ensure that people who you trust can look after you in a way that you would want.

This e-book is designed to provide all the information required to help you understand both the importance of setting up a LPA and how you can go about doing it. This includes advice on: •

Why someone with dementia needs a LPA

•

How to choose LPA attorneys

•

Power of Attorney in Scotland and Northern Ireland

•

Information on how to set up a LPA using the Unforgettable.org service

Registering your Lasting Power of Attorney document A comprehensive guide to how to sign and register your Lasting Power of Attorney Download for free now!

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www.unforgettable.org 0203 322 9070 info@unforgettable.org Unforgettable 6-8 Bonhill Street London EC2A 4BX United Kingdom