Useful information from De Cotta Law.
What is a Lasting Power of Attorney (LPA)?
It is a legal document that appoints someone to
undertake actions and execute documents on your behalf. Often used by those
that wish
to plan ahead and set out in advance what they would like to happen should they
become unable to make decisions for themselves in the future.
The rules on this changed fairly recently and for some it
appears more bureaucratic and time consuming. The LPA superseded the old
Enduring Power of Attorney in October 2007. An LPA is a Legal Document under UK
law which allows someone that you have chosen, to act on your behalf if you
were unable to act for yourself due to infirmity or lack of mental capacity.
How does A LPA work?
Firstly, an application must be made to the Office of the Public
Guardian, outlining who you wish to appoint as your Attorney. You can have more
than one Attorney if you choose. Within the document you can state whether you
wish to restrict your Attorneys in any way. For instance, you may allow them to
make decisions for you regarding some aspects of your property or investments,
however, you could restrict them from making decisions or taking action
relating to others. It is up to you.
When the application forms have been completed, signed and
witnessed, they are registered with the Court of Protection in the UK.
Once registration is complete (this takes about 12 weeks) the
LPA can be used by your Attorney to carry out transactions on your behalf.
Institutions, such as your bank, will record the details of your LPA for future
reference, if and when your Attorney first needs to use it.
Who can have an LPA?
You must be over 18 years of age, of sound mind when appointing
your Attorneys and have assets in the UK. You do not have to live in the UK.
What happens if you do not have an
LPA?
In the past, it was usual for family members to look after their
relatives and to act for them when they became infirm or incapacitated.
Children would care for parents and married couples would continue to look
after each other’s affairs. Under the provisions of the Mental Capacity Act
2005 which incorporates legislation surrounding LPA’s, this is no longer
possible. If you have not appointed an Attorney then no-one can act for
you.
The Court of Protection will take control of your estate. A
Court solicitor will be appointed to deal with your affairs and all decisions
and transaction will be carried out by that professional, significant fees
being deducted from your assets.
If property or bank accounts are held jointly, the joint owner
loses control over the asset until alternative arrangements have been agreed by
the Court of Protection.
A family member or friend can apply to the Court of Protection
to become your Deputy. This is a very lengthy process and that person may not
be the person you would choose. Annual accounts have to be submitted to the
Court and any decision made on your behalf have to be heard by the Court and
permission granted. Each time permission is requested, Court fees are payable.
As a safeguard when someone applies to register an LPA in their
favour or applies to be appointed as a deputy the court will notify direct
family members or close friends who are referred to in the LPA document.
How can De Cotta Law help you in this matter?
Ensuring that you fully understand the principles of establishing
an LPA and that your Attorneys are aware of their responsibilities under the
Act, is most important.
De Cotta Law specialises
in dealing with all aspects of Spanish Law for English speaking clients and
international clients. Offices in Coín, Mijas-Cost/Calahonda, Tenerife &
Nerja.
If you would like De Cotta Law to
prepare an LPA for you or you wish to have a private consultation, please
contact your nearest office for a private consultation.
Head Office Spain (Mijas):
Centro Comercial Valdepinos 1 y 3ª
Urb. Calypso
29649 Mijas Costa (Málaga)
Tel.: +34 952 931 781
Fax: +34 952 933 547
Monday to Thursday 09.30 – 17.30 – no siesta
09.30 – 14.30 Fridays
E-mail: [email protected]