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.

What You Must Know About Choosing a Bankruptcy Attorney

Before consulting with a bankruptcy attorney, it will be helpful to know that there are four main types of bankruptcy: Chapters 7, 11, 12 and 13. Only two, chapters 7 and 13 are personal bankruptcy options. The remaining two forms of bankruptcy, chapters 11 and 12 and for corporations and agricultural purposes respectively.

The first step you will want to take when choosing a bankruptcy attorney in the Kansas City area is finding out the practice areas of your attorney. Some attorneys practice specifically in bankruptcy related matters. Other attorneys have a more general practice where they may cover several practice areas with bankruptcy being one of many.

Other attorneys may have a general practice but they want to try bankruptcy out because of the recent developments in the economy. If this is the case and the attorney is a solo-practitioner, you will want to make sure that you ask if the attorney has a reference source by which he or she is able to get help concerning the things he or she may not know. The practice of bankruptcy law is extremely intricate and sometimes the slightest mistake can be the difference between whether the debtor receives a discharge or a dismissed case.

The next thing a potential debtor will want to know is which type of bankruptcy law the attorney practices. Again, there are some attorneys who concentrate specifically on chapter 7 bankruptcy work. Those attorneys may choose to concentrate on chapter 7 work because it is less complicated than the chapter 13 work. Generally, chapter 7 debtors will not have substantial assets and they are procedurally less tenuous than a chapter 13. This does not mean that there are Kansas City Bankruptcy attorneys, who concentrate on Chapter 7 bankruptcy law, who take chapter 13 cases.

Another valuable piece of information that a potential bankruptcy debtor will want to discover is whether the attorney will appear with the debtor at the meeting of creditors. Once the paper work has been completed and the documents have been filed with the Bankruptcy Court, the Bankruptcy Court for the Western District of Missouri will schedule what is called a 341 meeting.

This meeting is also referred to as “The First Meeting of Creditors.” It will be the first opportunity for the debtor to meet with the bankruptcy trustee and to confront any creditors who may want to prevent the bankruptcy from occurring. The attorney may not be privy to anyone wanting to challenge the discharge of the debtor before the meeting of creditors.

If the debtor’s attorney is not able to appear at the meeting of creditors, a replacement attorney will need to be selected. The debtor not having an attorney is generally not a good idea because the trustee may want certain documents sent to the trustee’s office within a short period of time or the trustee may have more specific questions that the debtor may not be able to answer.

If this were to happen, the debtor would need an attorney there who has a copy of the bankruptcy petition. Generally when a debtor attempts to conduct a meeting of creditors without the presence of an attorney, the debtor will not have all the information to adequately satisfy the inquiries of the trustee.

The next thing that a potential debtor will want to know when potentially choosing a Kansas City bankruptcy attorney is what is included in the attorney fee. This may vary from attorney to attorney. Generally, the attorney fee will be a flat fee that will include the bankruptcy petition filing fee. Currently, this fee is $300. However, the list of attorney duties could vary. Some attorneys will cover everything from start to finish with the fee that is paid.

Other attorneys may charge an additional fee if the petition has to be amended or if the trustee requires meetings outside of the meeting of creditors. Generally these fees will be covered in the contract for legal representation. If they are not, the potential debtor will want to discuss these issues with the potential Kansas City bankruptcy attorney.

These are a few things that a potential debtor will want to investigate when choosing a Kansas City bankruptcy attorney. The choice of an attorney is an important one and it should not be based solely on advertisement alone.

Cost of Filing Bankruptcy Using Attorney – Why Debtors Can Better Afford Bankruptcy Without Attorney

Bankruptcy: costs of filing bankruptcy with attorney, versus cost of filing using Bankruptcy Petition Preparer.

Under the current U.S. Bankruptcy Code or law, the system provides essentially TWO basic categories of outside assistance that a debtor filing for bankruptcy may use – assistance provided by an attorney, and assistance provided by a non-lawyer. And both of these parties come under what is called “Debt Relief Agents or Agencies.” Basically, the non-attorney assistance provider, who also goes by a name such as Bankruptcy Petition Preparer (BPP), preparers the documents upon which bankruptcy is filed with the Court for bankruptcy processing, while the attorney (or, more accurately, the help he hires that does such work) prepares the same set of documents, EXCEPT that the lawyer assistance-provider can supposedly give a debtor “legal advice,” and can appear, on the debtor’s behalf, in the administrative hearing on the bankruptcy case administered by the Court “Trustee” (who is not a Judge, but a court-appointed administrator) that will oversee the bankruptcy case.

Alright, How Do the Services and Fees Compare, Between the Bankruptcy Attorney and those of the Full Service bankruptcy petition preparer?

But what are the Costs of filing Bankruptcy using Bankruptcy attorney? Can debtors afford bankruptcy without lawyers? And, is there really any real, tangible, legitimate difference for the DEBTOR, both qualitatively and nominally, between the Full Service bankruptcy assistance that online-based non-attorney BPP agencies provide debtors, and that which is provided by online bankruptcy attorneys to debtors?

One view of it, popular in certain quarters among non-attorney online providers of bankruptcy filing assistance, is simply that there is “no difference,” or “little to none,” in terms of the actual or qualitative value of their work products for the debtor. The principal argument is that for each side, the actual, principal work that each side does or turns up for the debtor – the relatively simple but time-consuming, paperwork required to be prepared for the debtor’s use in filing for bankruptcy – is more or less basically the same content and quality for the non-lawyer prepared document, as it is for the lawyer prepared. In each case, the argument goes, the same set of documents are turned up by people who are seemingly experienced and trained or skilled in document preparation, and, in deed, in many real instances, are one and the same paralegals who work, or might have previously worked, for the bankruptcy lawyer’s office or the non-lawyer document preparer’s company. Or for both.

But, in any event, in the final analysis, the finished bankruptcy documents that both sides, the lawyer as well as the non-lawyer, provide the debtor, are generally the same and of the same quality. The Bankruptcy Courts generally accept them, process them, and act on them, just the same! In deed, it is a specific provision in the Bankruptcy Code that authorizes and sanctions that such persons may prepare such documents, and not just lawyers!

The Prices the non-attorney helper charges and what the attorney charges for Bankruptcy work

To a hard pressed and destitute debtor, the vexing, bothersome issue, is what justification, then, is there for the great disparity that exists in the prices the bankruptcy lawyers charge for bankruptcy work, relative to what the non-attorney bankruptcy document preparers charge for turning up essentially the same work for the debtor? Bankruptcy lawyers would, of course, advance all sorts of convoluted arguments and conceive all kinds of fancy justifications in defense of their extremely higher and disproportionate charges. That aspect, however, is a matter for another place and another day for us.

But is it a matter of no bankruptcy attorney, and cheap, low-low cost bankruptcy? For the benefit and information of debtors contemplating bankruptcy, just so you’ll at least have an idea, here are the differences in prices between what the non-lawyer assistance-provider charges, and what the attorney assistance-provider charges.

NON-ATTORNEY BANKRUPTCY HELPER’S SERVICES & PRICES

Service: In full Service bankruptcy work, the service of the non-lawyer debt relief agent or agency basically involves their staff gathering the various documents and required tons of papers and information together, and orderly arranging them and preparing all the legal forms and paperwork required by the debtor to file for bankruptcy with the bankruptcy court. For the better ones among them (they are not at all equal, some are far better than others, and quite a number of them are just about worthless!), these agencies use workers who are often highly trained and experienced paralegals (they average several years of work and/or training in the industry), and who are skilled at the preparation of legal documents and bankruptcy papers, and are often well versed and knowledgeable in bankruptcy filing law and procedures. With the Full Service bankruptcy petition preparers (at least those of them who are of the reputable and better categories), the debtor tends generally to get a better service and greater attention, and more one-on-one interaction for his or her case, along with the obvious far lower prices.

The Charges. There is usually a ONE-Time PAYMENT ONLY amount. One of such agency’s charge, for example, is $239 for a Chapter 7 bankruptcy; and $359 for Chapter 13. The price charged by these agencies tend strictly to follow an honest, upfront pricing that’s based ONLY on “per project,” rather than on “per hour.” (That’s in contrast to the attorneys’ charges, which are frequently based on “per hour” hourly rate).

This means that, once a reputable Bankruptcy Petition Preparer (BPP) takes any case from a debtor, you pay the BPP Agency, assuming it’s, say, a Chapter 7 case, just $239, and NOT a penny more on it, ever – no matter how many creditors you have (whether they’re 10 or 20, or 200), or you happen to start out with 10 creditors, but turn up 100 or 200 more later. Or, you have to file some additional papers to get some of your secured debts “affirmed” so you can keep, say, your car, etc. YOU JUST PAY THEM NOT ONE PENNY MORE. PERIOD! Thus, for most debtors, bankruptcy with no bankruptcy attorney assistance, offers the debtor low-low affordable costs and rates and is the only way to go.

The Time line. For the credible BPP, it takes an average of roughly one to two days to crank out the prepared, almost completed package of bankruptcy documents for, say, a Chapter 7 case filing (in a case, that is, where the debtor has hastened and substantially provides them the required financial information and documents necessary to do the papers). As a matter of policy, however, the BPP will hold off furnishing the papers to the debtor right away just so that the finishing touches, corrections and proper checking can be made before the debtor gets them. Bankruptcy, file with no bankruptcy attorney?

THE BANKRUPTCY ATTORNEYS’ SERVICES & PRICES

Service: What the bankruptcy lawyer (that is, the one who is competent and knowledgeable in bankruptcy, as not all attorneys are so equipped) does, is essentially akin to the Full Service bankruptcy type of work that the non-lawyer assistance-provider provides. Here, this involves the lawyer – or, more accurately, a staff of paralegals the he or she might have hired to actually do the work – gathering the various documents and required tons of documents and information together, and orderly arranging them, and preparing all the legal forms and paperwork required to file for the debtor’s bankruptcy with the bankruptcy court. As with the case of the non-attorney Full Service paper preparation providers, these workers who directly do the papers (the ones who are the persons that actually do the work in the lawyers’ the lawyers), are often highly trained and experienced paralegals (average several years of work and/or training in the industry) who are skilled at preparation of legal documents and bankruptcy papers, and often, well versed in bankruptcy filing law and procedures.

Furthermore, in terms of quality of service, with the lawyers, within the ranks of the lawyers who do bankruptcy work in the current times, those who file the bulk of the bankruptcy cases seem to be what one practicing bankruptcy lawyer, Jonathan Ginsburg, the Atlanta Georgia, calls “high volume filers.” These lawyers file 100 to 500 or more bankruptcy cases per month, using largely paralegals and some younger lawyers to do the paperwork, and for one thing, such high volume filers have a reputation for not offering much in the way of personal attention, but charge somewhat smaller fees relative to the “boutique” bankruptcy lawyers (those who file more limited number of cases) – a “smaller” amount of fees which Attorney Ginsburg admits, however, often still “appear to be too expensive” for some people “even [with] the lower fees and generous terms” that such volume filers think their charges represent.

Lawyers’ Charges: For Chapter 7, there’s the “initial” charge of $2,000 – 2,500; and for Chapter 13, the “initial” charge of $4,000 – $4,500. Unlike the BPP’s prices which strictly follow an honest, upfront pricing that’s based ONLY on one-time-only “per project” basis, the attorneys’ charges are frequently based on “per hour” hourly rate. (For example, the attorneys’ “per hour” hourly rate charge, was given as $228 (per hour) for their services in 2002, according to a respected independent research study, the 2002 Survey of Law Firm Economics, made by Altman Weil Pensa Publication).

Further more, as a rule, the lawyers’ fees for bankruptcy (the same, as well, in other issues) vary from lawyer to lawyer, and from one location to another location, even from a lawyer in one block to another lawyer just in the next block. The original charge (it’s usually referred to as the “initial” charge) you’re quoted by the lawyer, is often only for the run-of-the-mill, routine kind of case – the simplest, most ordinary kind of bankruptcy there is. So, if it turns out that you have, say, more creditors than the “average” (say, above 15 or so, depending on which lawyer or what part of the country), it will mean additional charge slapped onto your “initial” quoted charge. And, it can cost even more if it’s a “complicated” case in the lawyer’s opinion.

And further, God-forbid if there’s “litigation” or some creditor challenge to a debt, that means additional cost for you, a BIG one. If you are in a high-priced urban area, that alone will almost certainly guarantee more cost for you in filing for bankruptcy. Also, your lawyer will generally want his payment made IN FULL and upfront before he’ll represent you, especially if it’s a Chapter 7 case.

The Time line. Lawyers generally take an average of 2 to 3 weeks (if not more) to do the bankruptcy paper work for Chapter 7.

BOTTOM LINE:

In sum, for you as a debtor, what you should know is that bankruptcy lawyers’ generally make the allowance for themselves so they’d be able and in a position, after the “initial” fee shall have been paid them, to tack on additional fees beyond the “initial” fees you are quoted when you first signed on. The fee you are quoted by a lawyer in a bankruptcy case (even if you view it as excessive, already), may not be – and is often not – the final charge; you may still have to pay more. And probably will, generally!

Not so, though, with the non-lawyer bankruptcy assistance provider. Here, in contrast, that same very EXACT amount you’re quoted on day one, is the final and ONLY charge you’ll get, almost always, from them on the case – ever! PERIOD! The motto seems to be, no bankruptcy attorney & cheap, low-low cost bankruptcy!

Do you do your bankruptcy filing using the no attorney bankruptcy assistance, or the attorney?. What do you think?

FURTHER INFORMATION
For more on the details of the fundamental differences between the bankruptcy lawyer’s differential services, costs and benefits to the debtor, as compared to those provided the debtor by the non-lawyer helper’s services, or to find out how you or any others may use the services of one of the major non-attorney Debt Relief Agencies in the field of bankruptcy filing to file for your own bankruptcy, please visit this website: http://WWW.Afford-Bankruptcy.Com