10 FAQ’s for Attorneys Appointed Under a UK Lasting Power of Attorney

Lasting Powers of Attorney – The role of the ATTORNEY – UK

Have you been asked to be an Attorney and are you wondering what this really means? Are you concerned that you don’t know what to do?

This article explains your role and answers some key questions.

Lets start with what is expected of you as an Attorney.

FAQ’s

1. What does an Attorney have to do?

An Attorney is someone who has the authority to make decisions and act someone’s behalf.

So, you would be expected to make decisions and carry out tasks on behalf of the person who signed the Lasting Power of Attorney.

The following information should give you a good understanding of purpose of an LPA, but first, a little more background.

2. Who can be an Attorney?

Anyone over 18, you can be a friend or relative and people frequently ask their spouse to do it. Normally it is someone they trust and who knows them reasonably well. You can choose a professional attorney who will be paid for their service.

3. When do I actually have to do something? When do I become the attorney?

If the person with the LPA becomes too ill to look after their own affairs, then you as the attorney can start to make decisions and manage their affairs for them.

We call this losing capacity. You lose capacity if you are unable to make decisions.

4. How can I tell if someone has lost capacity?

Often medical staff will be the first to declare that someone has lost capacity. But you should still consider for yourself whether you think that they are able to make a decision. The law gives guidance on decision making:

  • Are they unable to understand information relevant to the decision?
  • Can they retain that information?
  • Can they weight that information as part of the process of making a decision?
  • Can they communicate it (whether by talking, using sign language or any other means)?

It may be that the incapacity is only temporary, but you may still be required to make decisions for them if they are incapacitated for a short time.

There is more information in Part 3 of the Mental Capacity Act Please bear in mind that the reason for the incapacity could be physical or mental, it could be due to accident, illness or for another reason. What is important is whether they are “incapacitated”.

If you are unsure, you must get further advice. Talk to medical professionals who are treating the person who made the LPA.

Please note that it does not matter if the person is making unwise or unexpected decisions, you may not agree with them but that doesn’t mean they lack capacity. Remember, you can only act when they are no longer able to make decisions.

As an attorney you should try to help the person who signed the LPA to make their own decisions if possible.

Useful information on the capacity to make decisions can be found in the Mental Capacity Act Part 3

5. What decisions can I make? What does “manage affairs” mean?

The first thing you should do is look at the LPA document. There are two types and you may be an attorney under one or both types of LPA.

  1. Lasting Power of Attorney – Health and Wellbeing or,
  2. Lasting Power of Attorney – Property and Financial Affairs.

If you are an Attorney under a Health and Wellbeing LPA you may be asked to make decisions about various aspects of the persons personal life. For example, you could be asked to make decisions on what medical treatment they receive or where they are to live, even what they eat and wear. You will only do this if the donor has lost the capacity (ability) to make the decisions for themselves.

If you are and Attorney under a Property and Financial Affairs LPA you can make decisions about money and property, you can pay bills, collect benefits and even sell the persons home for them. You can use authority this at any time, the person making the LPA does not need to have lost capacity.

6. Doesn’t this give me a lot of responsibility?

Yes, it does. You are in a very privileged position to help someone you care for. The LPA gives you the power to access someone else’s money and property and make intimate decisions over their personal lives.

However, you cannot abuse your position. You are legally obliged to always act in the persons Best Interests. This means you can only act on their behalf and you cannot make any decisions that aren’t in their best interests. You must also take reasonable care when making the decisions.

For guidance on what “best interests” means, you should look at Part 4 of the Mental Capacity Act.

Checklist:

  • Has the LPA been properly stamped by the Office of The Public Guardian? The LPA must have been completed and registered with the Office of the Public Guardian before you can do anything as an attorney.

Read through LPA document.

  • Look at any restrictions in the LPA has the person written anything in it? Look at page 6, section 5 of the LPA and make sure you comply with these restrictions. At section 6 the donor may have given the Attorneys guidance. This is does not have to be followed but should give you an idea of what the donor would have wanted if they still had capacity and it may help you decide what is in their best interests.
  • Does the document allow you to make decisions alone or do you have to make them with someone else “jointly”? You must make sure you comply with these directions. If it says “severally” this means that each attorney can act separately to the other attorney(s). Look at the LPA on page 5. You need to make sure that you can communicate with any other attorneys, especially where need to make decisions together.

Are you clear on your role and responsibilities? If not, have a look at chapters 4 and 5 of the Code of Practice of the Mental Capacity Act.

7. What happens if I have to spend my own money?

As a donor you are always entitled to claim your reasonable out-of-pocket expenses that you incur on their behalf. You should always keep a record and receipts for these expenses.

The donor may wish to pay a professional attorney for their services, in which case this will be detailed in the LPA on page 6 at section 7.

8. Do I have to be an Attorney?

No, you don’t. It is always better to tell someone that you don’t want to do it at the time they are making the LPA, so that they can choose someone else. If you withdraw later it can cause many problems and a lot of confusion.

9. Can I operate a bank account for the donor (person who signed the LPA)

Yes, you can if the LPA is a Property or Financial Affairs LPA. Always look at the guidance and restrictions in the document. Also make sure that you only use their money for their best interests.

If you are managing a bank account for someone else and finding the bank is not being helpful, then have a look for the “British Bankers Association Guidance for Consumers”. It gives guidance to you and the bank to help the attorney to access an account. You may wish to take it to the bank to remind them of their role.

10. Can I act on behalf of a parent, child or friend who has completed but not registered the Lasting Power of Attorney?

No, unfortunately it doesn’t matter how much you care for them or how much they would like you to help. It must be registered or you will not have the authority you need to conduct their affairs. In these circumstances you will unfortunately have to apply to the Court of Protection for the authority to act. They have to make a decision who should help and they usually place restrictions on the role of the attorney.

Assigning Power of Attorney (PoA) With Confidence

Incapacity planning, ensuring that there’s a strategy in place if you ever become incapable of managing your affairs, is important.

We all know that. Yet, it’s uncomfortable to think about and therefore easy to put off doing.

A key part of incapacity planning is assigning power of attorney (a legal document giving someone else the right to act on your behalf), but it’s also the biggest hurdle. Giving extra thought to who you choose, and what powers they’ll be granted, can give you the peace of mind to complete your plan with confidence.

Choosing your lawyer

Choosing someone you trust to assign power of attorney is essential. Acting as your attorney involves significant duties and obligations. Your attorney’s overarching duty is to act with honesty, integrity and in good faith for your benefit if you become incapable.

The law lays out specific obligations for the person chosen to hold your power of attorney. Among other things, they will:

  • explain their powers and duties to the incapable person
  • encourage the incapable person, to the best of their abilities, to participate in decisions concerning their property
  • foster regular personal contact between the incapable person and supportive family members and friends, and
  • keep account of all transactions involving the grantor’s property.

The attorney or attorneys you choose to act on your behalf should know these rules, and be aware of other rules set out in the act as well.

For instance, they’re expected to ensure you have a will and, if so, know its provisions. The main reason for this is that your attorney must not sell or transfer property that’s subject to a specific gift in the will, unless necessary.

The act also contains explicit instructions regarding both required and optional expenditures. Examples of the latter include charitable gifts where an incapable person made similar expenditures when capable and so long as sufficient assets are available. Your attorney should also be familiar with rules covering how or when he or she can resign, what compensation they may be entitled to and the standard of care expected of them.

Safeguarding your estate

You can also build a second opinion directly into your power of attorney documents by appointing more than one person. If you name two or more people, they’ll need to act unanimously unless the document states otherwise.

A joint appointment provides a level of protection in that any appointed attorneys must agree on all actions, while a “joint and several” appointment grants flexibility, allowing any one attorney to conduct business independently.

Many people choose to appoint the same people or trust companies to be both their power of attorneys and their executors. Although you don’t need to do so, the same list of key traits – expertise, availability, accountability and trustworthiness – apply to both roles.

It’s also possible to limit the powers granted to your attorney. If you’d like your attorney to act only for a specified time period (maybe a vacation or hospital stay) or in respect of a specific transaction (the closing of a real estate deal), a limited or specific power of attorney is worth considering.

In the case of a general continuing power of attorney, many people want the document to be used only if and when they become incapable of managing their affairs themselves.

Although the document is effective when signed, it is possible to include provisions in the document itself that defers it to a future date or the occurrence of a specified condition (for example, the grantor has a stroke). These are sometimes referred to as “springing” powers of attorney.

Whichever way you prepare your power of attorney documents, careful consideration of who you choose as well as availing yourself of available safeguards will help ensure your confidence in your incapacity plan.

Common Mistakes to Avoid

  1. Making a quick decision: Many people name their PoAs without thinking about their choice’s financial capability, much less their ability to get along with other family members.
  2. Assuming family is always the best choice: It’s far more important to choose someone who truly has your client’s best interests at heart.
  3. Waiting too long: If there’s already a question of diminishing capacity, it’s likely too late to make a power of attorney ironclad.
  4. Not reviewing it: Changing life circumstances and new provincial legislation can make an old PoA invalid.

Plan for Incapacity

Your estate plan doesn’t end with an up-to-date will. It should also anticipate possible future incapacity, which usually means preparing powers of attorney for both property and personal care.

Power of attorney, a legal document that gives someone else the right to act on your behalf, has two main types: one for management of property, another for personal care.

Will and estate planners generally advise preparing both types of powers of attorney. While they are often prepared at the same time as your will, they can be created at any time.

Personal care

With a power of attorney for personal care, you can authorize someone to make decisions concerning your personal care in the event that you become incapable of making them yourself.

You can give power of attorney for personal care if you’re at least 16 years old, have “the ability to understand whether the proposed attorney has a genuine concern” for your welfare, and can appreciate that the attorney may need to make decisions.

Personal care includes decisions concerning health care, nutrition, shelter, clothing, hygiene and safety.

Property

A continuing power of attorney for property authorizes someone to do anything regarding your property that you could do if capable, except make a will.

The law says you’re capable of giving a power of attorney for property if you’re at least 18 years of age, know what kind of property you have, along with its rough value, and are aware of any obligations owed to your dependants.

The term “continuing” (sometimes called “enduring”) refers to a power of attorney that may be exercised during the grantor’s subsequent incapacity to manage property. Ensure the document stipulates that you want the power of attorney to be used only if you become incapable.

What you need to know

A continuing power of attorney for property is a powerful document. Unless otherwise stated in the document, it’s effective when signed, granting considerable power.

In fact, the act explicitly requires you to acknowledge this authority can be misused. And, as part of the capacity test for granting a continuing power of attorney, you must also acknowledge the property you own may decline in value if not properly managed.

A financial institution, land titles office or other third party presented with a continuing power of attorney for property with the restriction “effective only in the event of the grantor’s incapacity” will want evidence of the incapacity.

That evidence could be hard to get. One solution is to set out terms of use in a separate document and have all original copies of the power of attorney held by a trusted third party. You could, for example, direct that document be released only if:

  • You tell the attorney you want him or her to start acting;
  • You are legally declared incapable of managing your property;
  • One or more doctors advise that you’d benefit from assistance in managing your affairs; or
  • Certain family members advise the attorney should begin acting.

No direction could be costly

If you fail to prepare power of attorney documents, it may take an application to court before someone can be appointed to make decisions for you. That can leave you scrambling when you’re in no physical shape do so. Having a will doesn’t help because an executor is only authorized to act after you die.

On top of that, court processes can be both costly and time-consuming. Depending on the circumstances, the Public Guardian and Trustee may have to get involved.

You also lose the opportunity to appoint people or companies of your choosing and aren’t able to establish parameters regarding the actions of your substitute decision makers.

Insider Tips for Choosing Your Divorce Attorney or Mediator

Whether you’re a man or woman, the dumper or dumpee, one of the very first things you probably realized you needed to do to get divorced is that you need to hire an attorney. If you’re like most people, you probably asked a friend or family member who’s been divorced who they used and then promptly hired that attorney. It wasn’t until after you’d already plunked down your retainer that you had any idea of what working with this attorney would be like.

If this sounds like you, you might be in for some surprised. This article will help you to better educate yourself about what you can and should expect from your attorney. AND how to select a new one if you decide to adjust course on your representation.

If, however, you’ve not yet selected an attorney, then READ THIS BEFORE you retain one.

STEP 1: Develop your short-list of attorneys. You need to interview (yes, interview) at least 3 attorneys before deciding whom you want to represent you. Go ahead and ask your friends and family for referrals, if and only if, your friends and family felt comfortable with their attorney.

STEP 2: Decide on the questions you want to ask your short-list of attorneys. One of my attorney friends wrote a great article for my website – “How to Choose an Attorney”. You can check out her article on my website with the link below. In addition to the questions she suggests you use to interview your short list of attorneys, I also suggest you ask about the minimum billing increment. Attorneys typically bill by the hour for their services and have a minimum billing increment. What this means is that if an attorney has a minimum billing increment of 15 minutes and they receive a call from a client that lasts for 10 minutes, the attorney will bill their client for 15 minutes of time.

STEP 3: Schedule the interviews. Attorneys are busy people and you might not be able to get in to see them as quickly as you’d like. You probably knew this already on some level, but sometimes having the reminder helps.

STEP 4: Prepare for the interviews by getting yourself a notebook that you use to track the answers each of the attorneys provide to the interview questions you decided on in STEP 2.

STEP 5: Interview each of the attorneys on your short list. The key here is to remember that the attorney will work for you. You have the responsibility to make sure you’re choosing differently if your first choice doesn’t work. If you decide you need to choose differently, just start at STEP 1 again.

STEP 6: Select and retain the attorney you believe you will be best able to work with during your divorce. Once you’ve completed all of the interviews, allow yourself some time to review all the notes you took during each interview and then choose your attorney.

Choosing the correct attorney to represent you when you divorce is vitally important. Divorce changes your life in ways most people can’t predict. Because of the changes, you’re going to want someone in your corner who has YOUR best interests in mind. By following the 6 steps above you’ll be able to find the best attorney for you.

Your Functional Divorce Assignment:

If you’ve not yet hired an attorney, follow the steps above. I rarely believe it’s a good idea to divorce without the help of an attorney or mediator. OK, I’ve not yet seen a case where it’s a good idea to divorce pro se. There are just too many things that can get misinterpreted in filing paperwork on your own. So, please, do yourself a favor and save future headaches by working with a professional now.

If you’ve already hired an attorney, remember your attorney works for you. It’s not unusual for me to hear stories from clients that their relationship with their attorney isn’t working. (These are the ones who hired me AFTER hiring their attorney.) What I remind them of is the fact that their attorney works for them If your attorney isn’t representing you the way you expect, then schedule some time to discuss your expectations. Most attorneys are more than willing to understand how best to serve their clients. Oftentimes, it only takes a simple conversation to clear the air and get things back on the correct path again.

How to Find an Attorney in My County Via the Internet

Simply typing in the phrase “find an attorney in my county” in your favorite search engine won’t give you your desired results for the most part. “Find an attorney in my county” is a very broad term because there are millions of counties world wide. The search engine won’t know where it is exactly that you need a lawyer. You would be better off typing in a phrase such as “orange county attorney”, or “Sacramento county attorney”, or whatever county you need a lawyer in. And always include the quotation marks in your search phrase. That will give you results for the exact phrase that you are searching and nothing else. If you don’t include the quotation marks, the search engine will give you results for each word in the phrase, which is usually in the thousands or even millions of results and may not be what you really need.

Let’s get back to “how to find an attorney in my county” subject. You will get much better results when you search for the exact attorney of your need. For an example, if you need a divorce attorney and you live in Macomb county, you simply search for “Macomb county divorce attorney”. Also, don’t forget to check for the other expression “Macomb county divorce lawyer”. Attorney and lawyer is a same thing, but when the search engines are concerned, attorney and lawyer are two different words. You don’t know if the webmaster of the lawyer’s website has optimized the site for both words. For that reason you need to search for both. This search will produce only a few results that contain this specific phrase. This way you may get a website of an actual divorce attorney in Macomb county or you may get garbage results, or even no results at all. It depends on what the search engines have in their database for that search phrase. Whether they have websites from actual attorneys, or from advertisers targeting that search phrase, or from some scammers who are also targeting that search phrase by tricking the search engines.

To narrow down your search even further, if you type in “orange county attorney”, you may get results from orange county in Florida and orange county in California, or elsewhere in the world. So, it would be better to try “orange county ca attorney” or “orange county fl attorney”. Or better yet “orange county ca divorce attorney”. These are very narrow search methods that will produce very few results and straight to the point. But, since you cannot depend on the optimization of the websites, whether they have been done correctly or mischievously (that’s how search engines know which website is for what), you would get a lot more relevant results by splitting your search phrase. By all means, try your search first with the above search phrases because you would have only a few results to evaluate. The next search method will give you hundreds or even thousands of results that would still be relevant, but you need to spend some time weeding out the bad ones or the ones that you don’t need.

What splitting the search phrase means is to include the lesser populated search in quotation marks and the more populated phrase without quotation marks. For an example, if you live in Ramsey county and you need a DUI attorney, you can search for: “DUI attorney” Ramsey county. Also don’t forget: “dui lawyer” Ramsey county. So, you only put the type of attorney that you need in quotation marks and the county without quotations. The reason you get thousands of results with this type of search is that every DUI attorney website will contain the term DUI lawyer or whatever lawyer you are searching for. But it may not contain the county term because either the webmaster forgot about it or didn’t know that he or she needs to include it. So, when you do this type of split phrase search, you will first get all of the results that contain the term DUI lawyer (of whatever type of lawyer you’re seeking) from the websites that also contain the term that describes your county, and then the rest of the other websites within that county. You get more choices to choose from.

If the above methods don’t produce the attorney of your need (based on the optimization of the websites and the available sites in the search engine database), instead of wasting hours of endless search with no results, there are still easy ways to “find an attorney in my county” online.

Besides the above methods of typing in the county and the type of attorney in quotations, you can also use some free services to actually find the attorney for you. By the way, have you forgotten your yellow pages or whatever phone book you have in your county? That’s your best bet. But that’s the offline world. However, these types of services are also available online.

Any type of website that deals with locating businesses, such as anywho.com, truelocal.com, yellowpages.com, can find you an attorney in not only your county, but in your city. Just key in the type of attorney that you need under business category (i.e. immigration attorney) and choose your city and state. Also, you can try the lawyer directories such as martindale.com, findlaw.com, lawyers.com, that contain attorneys and law firms from the whole world. Lawyer referral services such as legalmatch.com, globallawyerreferral.com, your local and state bar association, can also find you a lawyer in your county.

Regardless of how you find your lawyer, remember that same principals apply while choosing your attorney. You need to make a list of qualifications you want in your lawyer and interview your prospect lawyers before you decide on who will represent you.

Disclaimer: The author and publisher of this article have done their best to give you useful, informative and accurate information. This article does not represent nor replace the legal advice you need to get from a lawyer, or other professional if the content of the article involves an issue you are facing. Laws vary from state-to-state and change from time-to-time. Always consult with a qualified professional before making any decisions about the issues described in this article. Thank you.

Ask These 5 Questions When Choosing a RESPA Real Estate Attorney

“What the heck is RESPA?”

Many attorneys try to handle real estate matters in addition to their regular practice. Very few lawyers are aware of the complexities of the Real Estate Settlement and Procedures Act (RESPA) enforced by the Department of Housing and Urban Development (HUD.)

RESPA statutes are consumer protection laws that impact virtually all single family to four family homes. RESPA compliance issues and the remedies available to borrowers who have been victimized by unscrupulous mortgage lenders, title companies and other real estate settlement providers are a real challenge. Even for full-time real estate attorneys, RESPA is a very complex statute. You must be careful and ask questions of the attorney you choose in order to make sure you get the proper legal protection that the RESPA statute i is designed to accomplish. Consumers and Businesses alike are protected when RESPA is in compliance.

Question #1

“What RESPA experience do you have?”

No doubt about it. Start with the big one. Real estate laws and regulations are complicated enough without adding RESPA to the equation. Have they prepared marketing agreements that comply? Have they attended RESPA specific training courses and seminars? Have they kept abreast of the most recent HUD guidelines and court cases nationally regarding RESPA? How many RESPA cases and clients have they handled? What types of RESPA cases did they handle? Were the issues similar to yours? What were their results? Don’t be shy!

Question # 2

“What type of reputation does the attorney have?”

This is a tough one to figure out – so do your homework! Is the attorney primarily a transaction attorney or a litigator skilled in courtroom procedures if necessary? Your attorney must have the communication skills necessary to work with the other attorney as well as you. The other attorney, if more knowledgeable on RESPA can run over you and your lawyer. Remember that many cases are won or lost on the attorney’s knowledge and high ethical standards. Check the local Bar association for background. Get references and check them out thoroughly.

Question # 3

“What type of resources does the attorney have?”

No attorney can do everything well. Make sure that your attorney has the resources available to work your case efficiently. Does the attorney have a well established network of experts and fellow attorneys who can network with to add value and expertise to your problem? Some attorneys try to do it all and act as a one man band. Your attorney’s ego should not be larger than your case. A good attorney quickly involves others with higher degrees of expertise in areas where it is needed to represent you properly. The experts they use are a reflection of your new attorney.

Question # 4

“What about communications and follow up?”

The hallmark of a good attorney is the degree of communication he has with his clients. If you have to ask “What’s going on with my case?” then you have a problem. You don’t want to have these types of issues after choosing an attorney. Be blunt and ask how often you will be contacted and updated. How will you be contacted? Will the attorney just send you a form letter or use personal communication and contact? How do you prefer to be contacted? E-mail, phone calls, letters? Ask for it. “Are you too busy to handle me? Are you going to push me to a lower level staffer or junior attorney?” Clear communication and updates can ensure success and results.

Question # 5

“How do they charge?”

Some attorneys charge a flat fee, some charge a contingency based upon results and some charge hourly rates. The type of problem or case generally dictates the type of charge. There is an old saying, “Speed, Efficiency and Price – pick TWO!” The cheapest attorney may not be the best and the most expensive attorney may not be the best either! Make sure that you are not penny wise and dollar foolish. You are choosing an attorney for results. Make sure that your attorney has the financial incentive to work your case efficiently and successfully.