– Is There Any Point in applying?
It’s a question I’m asked from time to time.
“I’ve been diagnosed with a terminal illness. Is it too late to make a Lasting Power of Attorney?”
The simple answer is probably not. In many cases there are still months or even years left, and you can still manage things yourself while you wait three months or so for the Office of the Public Guardian to do their thing.
In fact, provided you still have the mental capacity to understand what you are signing, making a Lasting Power of Attorney (LPA) can be one of the most important things you do. It can spare your family considerable stress at an already difficult time.
The major issues are the 4 week waiting period which is required by law, plus the fact that the tiniest error will get the LPAs thrown out.
- Capacity Is the Key
Many people assume that a serious diagnosis automatically means they can no longer make legal documents.
It doesn’t.
The law requires you to have the mental capacity to understand what an LPA is, what powers you are giving, who you are appointing and the consequences of your decision.
Many people with terminal illnesses retain full mental capacity until very late in their illness.
- Are the attorneys readily available to sign the Lasting Power of Attorney Paperwork?
If they are not local, that can slow things down, and overseas attorneys are not ideal. The post in the UK is bad enough, so if it is really urgent, they need to be able to sign the same day as you do.
- But What About the Time It Takes?
Normally, an LPA takes around three months to be registered by the Office of the Public Guardian before it can be used.
However, where there is a genuine urgency because someone is terminally ill, the Office of the Public Guardian may be able to fast-track the registration.
This isn’t automatic.
The application must usually be supported by appropriate medical evidence confirming the urgency, and the forms need to be completed accurately. Any mistakes or missing information will delay the process considerably.
Getting Everything Right First Time
When time is precious, there is little room for error.
Getting the full names and addresses wrong is surprisingly common. CHECK.
Incorrect signatures.
Wrong dates.
Missing details.
Using correction fluid.
Signing in the wrong order.
Any of these can result in the Office of the Public Guardian querying or rejecting the application, losing valuable weeks or even mo.
For urgent cases, every form should be checked meticulously before it is sent.
Sending the Application
When applying under an urgent procedure, it also makes sense to send the application using a fully tracked guaranteed next working day delivery service. It won’t make the Office of the Public Guardian process it any faster, but it helps ensure the documents arrive promptly and provides proof of delivery.
Is It Worth Trying?
In many cases, absolutely.
If the person still has capacity, an urgently registered LPA can allow trusted family members to deal with bank accounts, pensions, utility companies, investments, property matters and, where appropriate, health and welfare decisions if the donor later loses capacity.
Without an LPA, loved ones may have to apply to the Court of Protection to become a deputy—a process that is significantly slower, more expensive and often unsuitable when time is short.
Don’t Wait Until Tomorrow
If you or a member of your family has received a terminal diagnosis, don’t assume it is already too late.
The earlier advice is sought, the greater the chance that an LPA can be prepared, signed and, where appropriate, registered under the Office of the Public Guardian’s urgent process.
Even where time is limited, families are often relieved to discover there is still an opportunity to put affairs in order.
Every situation is different, but one thing is certain: delaying rarely improves the chances.
If you are concerned about time, seek professional advice immediately. An experienced practitioner can assess capacity, prepare the paperwork correctly, minimise the risk of delays and advise whether an application for accelerated registration is appropriate.
When families already have enough to cope with, removing unnecessary legal hurdles can make a difficult time just a little easier.
Feel free to get in touch – if you are local, great, I can supply a full service, if not, I can supply a more limited but slightly cheaper service.
Steve Pett, The Professional Will Writer and Lasting Powers of Attorney 01323 766766.