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LPC Law Notes > Private Client Notes

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LASTING POWER OF ATTORNEY
Procedure before the attorneys can use the LPA:
1 The donor needs to choose a certificate provider
The donor reads all the prescribed information and, if he/she is happy, he/she completes the 2 remaining boxes and signs in front of a witness
As soon as reasonably practicable after*:
(1) the certificate provider (assuming he/she is satisfied as to the donor's capacity) completes and 3 signs Section 10 of the LP1F/LP1H
(2) the attorneys complete and sign Section 11
The executed LPA will still have no effect unless and until it is registered with the PG. Prior to 4 registration, the person applying to register will notify the people the donor has nominated in
Section 6. A four-week delay will follow to allow them to object to registration.
On receipt of the application, the OPG must notify the attorneys (if the donor applied) or the donor 5 (if the attorneys applied). Only if there are no objections can the registration proceed smoothly and the LPA be used.
* It is usual to register the LPA as soon as it is created in case there are any mistakes. If registration is delayed until the donor loses mental capacity, it will be impossible to rectify errors.
Gifts - could the attorneys do the following:
 S.12(2) MCA: LPA attorneys can make gifts only on customary occasions to people related or connected with the donor or donations to charity
 S.12(3) MCA: 'customary occasions' = birthdays, weddings, celebration of civil partnerships, Christmas/other religious occasions, and any other occasion when families and friends usually give presents
Spend £10,000 of the
 The gift must not be unreasonable having regard to all the circumstances,
donor's money to in particular the size of the donor's estate.
enable his/her child to
 You could argue that a gap year may occur after graduation. Re Treadwell have a gap year after
(2013): a graduation present was regarded as a 'customary occasion' for graduation?
making gifts' - however, the size of the gift must not be unreasonable having regard to the size of the donor's estate.
 They could apply to the CoP for authority, which would be granted if it was in the donor's best interests.
 This gift falls within s.12(2) as it would be made on a 'customary occasion'
Spend £3,000 of the donor's money to buy
(i.e. 18th birthday).
his/her grandchild a
 The gift must still be reasonable having regard to all the circumstances, in particular the size of the donor's estate.
car for their 18th birthday?
 These gifts do not fall within s.12(2) as they are not made on 'customary
Continue the donor's occasions'.
 The Mental Capacity Act does not expressly permit an LPA attorney to habit of making gifts each April to his/her benefit people to provide for their needs. However, the CoP has confirmed children to use up that an LPA attorney may provide for the needs of family members if the their annual donor is legally obliged to maintain them as is the case with the donor's exemption for IHT
spouse/civil partner or minor child.
purposes?
 The CoP could still authorise the gifts under s.23(4), having regard to the need to act in the donor's best interests.
Transfer large sums to  This is not customary and so falls outside s.12(2).
the donor's
 Again, the CoP could authorise it under s.23(4) having regard to the need to spouse/civil partner to act in the donor's best interests.
equalise their estates for IHT purposes?
I don't want my shares in ABC plc to be sold without the consent of X (the other shareholder). Can we

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