Lasting Powers of Attorney (LPAs) An ordinary power of attorney is a legal document that lets you (the donor) appoint someone (the attorney), to make decisions on your behalf even if you still have the mental ability to do so for yourself. For example, it may be that you have difficulty with day-to-day tasks such as making the trip to the bank or you might be out of the country for long periods of time and want to give someone the power to look after your financial interests in your absence. A Lasting Power of Attorney is similar to an ordinary power of attorney, but it continues to be a legal document even if at some point in the future, you lose the mental capacity to make decisions for yourself, perhaps due to illness or injury. Effective from 1st October 2007, there are now two different types of Lasting Power of Attorney available to individuals wishing to make provision for the future: - Property and Affairs Lasting Power of Attorney that allows you to choose someone you trust to make decisions about how to spend your money and the way your property and affairs are managed. Once registered and unless you have put a restriction on it, this type of Lasting Power of Attorney can be used by your attorney(s) straight away.
- Personal Welfare Lasting Power of Attorney allows you to choose a person to make decisions on your behalf relating to your personal healthcare and welfare including decisions to give or refuse consent to treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when the Lasting Power of Attorney has been registered and you lack the capacity to make the necessary decision for yourself.
Whenever an attorney makes a decision under a Lasting Power of Attorney, by law they must act in the best interests of the donor who has given them the power. If you want to make plans for the future, creating a Lasting Power of Attorney will allow you to choose one or more people to act as decision-makers. A Lasting Power of Attorney can be made by anyone aged 18 or over but can only be used once it has been registered with the Office of the Public Guardian. More detailed information and guidance booklets about making both types of Lasting Power of Attorney is available from the Office of the Public Guardian, following the introduction of Mental Capacity Act on 1st October 2007. Enduring Powers of Attorney (EPAs) When the Mental Capacity Act comes into force, no one will be able to make a new Enduring Power of Attorney. An attorney given power under a valid Enduring Power of Attorney made before the Act comes into force will be able to use it as the donor intended and if necessary, apply to the Office of the Public Guardian (OPG) to have it registered. An attorney under an Enduring Power of Attorney has a duty to apply to register it as soon as they have reason to believe that the donor is becoming or has already become mentally incapable of making financial decisions for themselves. If you need to register an Enduring Power of Attorney after 1st October 2007, you should refer to the information that will be provided on the OPG website (http://www.guardianship.gov.uk) in due course. At that point it will be important to use the new forms required for Enduring Power of Attorney registration. Anyone who considered making an Enduring Power of Attorney will now be able to make a Lasting Power of Attorney (LPA), which is a revised type of power introduced by the Act. There will be two types of Lasting Power of Attorney available: - Property and Affairs
- Personal Welfare
If you have already made an Enduring Power of Attorney and as long as you retain the mental capacity to do so, you will be able to make an Lasting Power of Attorney to run alongside an Enduring Power of Attorney. For example, you may make a Personal Welfare Lasting Power of Attorney to provide for decisions about your healthcare and welfare to run alongside an existing Enduring Power of Attorney that makes provision about your finance and property affairs. You may also wish to consider revoking your Enduring Power of Attorney and making a Lasting Power of Attorney instead. Please note that the Public Guardianship Office, and in future the Office of the Public Guardian, cannot give you legal advice to help you in these decisions. You should seek professional legal advice. Deputies Once the Mental Capacity Act comes into force, where the Court of Protection appoints a "decision maker" (either for property matters or for health and welfare matters), that person will be known as a deputy. The deputy will be provided with a Court Order, setting out the their powers and responsibilities, which might include providing the Public Guardian with an annual account or a report, showing the action they have taken or decisions they have made over the year. | Helping to Protect the Elderly and Vulnerable. Much has been reported about the Enduring Power of Attorney Act 1985, replaced by the Lasting Power of Attorney on 1st October 2007, following a number of publicised incidents, where advantage has been taken of the elderly, the sick and infirm, together with others, who find themselves disadvantaged in life, this clearly is unacceptable in twenty-first century. The purpose of this web page is two fold, to inform and to present some, (but not all) of the arguments to be debated. Therefore when considering the use of a Lasting Power of Attorney you should ensure that the following is taken into account before proceeding. 1. It important that any Lasting Power of Attorney are prepared and agreed before the Donor, that is the person appointing the attorney(s), becomes incapacitated as one of the principle requirements of an attorney is to carry out the wishes of the Donor, this can be difficult to establish if the illness or mental capacity of the individual has deteriorated and the courts may have to intervene. Some would advocate that the initial preparation of a Lasting Power of Attorney should be performed at the same time of making a will. The logic being an individual could be involved in a tragic accident that left them seriously injured. We have to acknowledge that these events, sad and upsetting as they are, do not recognise any age barriers. 2. Choosing an attorney may on the face of it, seem simple, but all sorts of issues can arise. Should it be a relative or close family or personal friend? Maybe because of travel and or family issues, it would in some circumstances be better to select an independent attorney. Then there is the question of how many, in situations where more than one attorney is appointed, should they act Jointly (that is they must act together and cannot make decisions independently of the other) or Jointly and severally. (that is they act together but can also act separately if they so wish) Whilst there is no right or wrong answer, commonsense suggests that Joint attorneys acting Jointly, affords the Donor with the best protection for the future. 3. Do you give your attorney(s) general powers in relation to ALL your property and affairs, which means they would be able to deal with ALL monetary and property matters, including the selling of your house. It is vital that you convey to them your wishes, desires and expectations. It therefore follows, that arrangements should be made well in advance of any need. The documentation can be prepared, but does not have to be presented to the court in the form of an application for registration, until the Donor is becoming or has become incapable. Before submitting any application your attorney(s) must give written notice of their intent to you and your nearest relatives as defined in the Act. You or your relatives will be able to object if you or they disagree with the proposed registration. 4. What if you don’t want your attorney(s) to have such wide powers? It is possible to impose restrictions both in terms of when the Lasting Power of Attorney becomes active and at the same time ensure that your stipulated wishes are carried out. (This is not dissimilar to the contents of a will and the duties of an executor) Any conditions must be written or typed and form an integral part of the Lasting Power of Attorney documentation. 5. If you are a joint owner of a house or other property, you are actually classed as a trustee and should seek further legal advice if you wish your attorney(s) to act as trustee(s) on your behalf. 6. If you do not put any restrictions on your attorney(s) or fail to prepare detailed written or typed instructions, they will be able to make use of your property and money without further reference to you, in addition they can make reasonable gifts on your behalf. 7. Reasonable out-of-pocket expenses can also be recovered by your attorney(s). If an attorney is a professional businessman, (e.g. solicitor, accountant etc) they may be able to charge for their professional services. However you may wish to provide expressly for these charges in order to limit or cap these costs for the future. 8. You can cancel or amend an Lasting Power of Attorney at any time prior to its registration. 9. Whilst a Lasting Power of Attorney will normally be administered via the immediate family, there are situations when this is not practical or possible. A small number of professionals are now available and offer a discrete and confidential service which enables you to have peace of mind, in the knowledge that your affairs will be transacted in accordance with your wishes should the need arise. They will on appointment, normally conduct a number of informal interviews with you in order to establish and document your desires and expectation in the event that a Lasting Power of Attorney has to be registered. Most will only act as Joint attorneys and are often endorsed by local firms of solicitors and accountants. This also overcomes any conflict of interest that can occur and serves to protect those looking after your daily needs. They normally carry out the work for a fixed fee and should not become a direct beneficiary from the estate of the Donor Client, except in very special or exceptional circumstances. They may also be requested in some situation to act as your executor(s), particularly in this age of geographically dispersed families. |
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