Lasting Powers of Attorney

Lasting Power of Attorney

What would happen to your finances and your affairs if you were suddenly unable to make decisions?

It could be something serious and life-limiting, like dementia…or it could simply be an unforeseen accident or illness that puts you in hospital for weeks or even months.

Who would take care of your financial decisions and make sure your bills are paid and your wishes carried out?

Most of us don’t like to think about scenarios like this – in fact, it’s not something that even occurs to most of us. But it’s incredibly important.

Complimentary Initial Consultation

Get in touch

The best way to make sure everything is taken care of, so you and your family don’t have to worry about things, is to put in place Powers of Attorney.

A Power of Attorney (PoA) is a legal document that allows someone to make decisions for you, or to act on your behalf if you’re no longer able to make your own decisions. Or you may simply no longer want to make your own big decisions.

This doesn’t remove your independence and ability to make decisions entirely – if you still have mental capacity to make your own decisions, you can do so. But if you don’t want to make certain decisions or deal with certain situations, your PoA will enable you to ask your attorney to deal with it on your behalf.

It gives you the choice and should the worst occur and you lose capacity it provides you with the comfort and peace of mind that your affairs will be taken care of as you wish by someone you know and trust.

There are different types of power of attorney, and you may want to set up more than one.

An Ordinary or General Power of Attorney (OPA) allows your attorney to act on your behalf for a specific purpose or timescale. However, an OPA is only valid while you still have mental capacity to make your own decisions.

If you want your attorney to be able to act generally on your behalf, or if you want someone to be able to act for you if the time comes when you don’t have mental capacity to make your own decisions, you’ll need to make a Lasting Power of Attorney.

Individuals can make a lasting power of attorney (LPA) which enables them to choose a person to make decisions regarding their health and welfare, and/or their property and finances.

This replaces the previous system of Enduring Powers of Attorney (EPA).

Since October 2007 it has not been possible to create an EPA. EPAs created before October 2007 remain valid and can be used if the person who made the EPA loses mental capacity. However, it is important to know that EPAs do not cover Health and Welfare matters. If you currently have an EPA and wish for your attorney to help you make decisions in connection to your health and welfare you will need to make a Health and Welfare LPA.

It is not possible to convert an existing EPA into an LPA.

Terminology

The Donor of the Power - the person creating the power who wishes to delegate decision making

The Attorney - the person (s) or institutions appointed to act under the power to make decision on behalf of the donor

The Scope of LPAs

You have the choice to determine whether your LPA should apply to personal welfare, financial affairs or both.

You can also make restrictions to the scope of the LPA as it relates to particular financial matters or health and welfare decisions e.g. to withhold permission to deal with a specific piece of property or to make certain medical decisions.

Where the LPA relates only to property and financial affairs, the attorney can be either an individual or a trust corporation i.e. a bank. However, when the LPA relates to welfare, only an individual can be appointed.

Different attorneys can be appointed by the donor to act in respect of welfare and property and financial matters.

The overriding principle is that an attorney appointed by an LPA is obliged to act in the best interests of the donor at all times.

The Attorney's Powers under the LPA - Finance and Property Matters

These include:

Operating a bank account
Making investment decisions
Signing tax returns
Buying and selling property

There are also certain restrictions, for example the attorney cannot

Sign the donor's Will, or
Act for the donor as a trustee or executor, or
Make gifts, except in cases where the gift has historically been made by the donor

Powers Relating to Health and Welfare

Attorneys have the power to decide on issues such as:

Living and accommodation arrangements for the donor
Care and medical treatment
Decisions relating to the application or continuation of medical treatments.

An attorney cannot make decisions where:

The donor has the capacity to make the decision themselves
The decision would be contrary to an LPA subject to valid 'advance conditions' made by the donor concerning medical treatment at a time when they had full mental capacity
It relates to the refusal of life-sustaining treatment, unless the LPA expressly says so

Complimentary Initial Consultation

Get in touch

The Procedure for Making an LPA

For the LPA to be valid it needs to be registered by the Office of the Public Guardian. This will usually be done immediately after it is created. This contrasts with the EPA which only required registration when the donor was believed to have lost mental capacity.

The LPA must be 'certified' under the LPA scheme. This means that the LPA certificate needs to be countersigned by someone who has either known the donor for at least two years or is a 'prescribed person' such a solicitor or a doctor.

The certifier must confirm that, in their opinion, the donor understands the effect of the LPA and the purpose and scope of the documents they are signing and that the decision of the donor was not influenced by fraud or undue influence.

The donor can appoint one or more attorneys. The LPA should specify whether, if there is more than one attorney, the attorneys must act together or separately. It is possible to provide that certain decisions are made jointly e.g. the sale of a house and others jointly and severally (i.e. individually) e.g. operating a bank account. This contrasts with the EPA where the attorneys acted either jointly for all decisions or jointly and severally for all decisions.

Once registered, the attorney has the authority to act in accordance with the terms of the LPA. However, for each decision that they need to make they must check with the donor if he/she can still play a part in making that decision otherwise they will not be acting in the donor’s best interests.

In other words, there is no definite time when the donor loses capacity absolutely.

Capacity has to be assessed for each individual decision e.g. a donor may not have the capacity to decide if they want to sell their house but has the capacity to withdraw a weekly amount of cash from their bank account. Third parties, such as banks or doctors, will need to see a copy of the document before they will accept an attorney's instructions and will need to satisfy themselves that the donor is unable for each transaction to play a part in the decision making process.

An LPA can be revoked by the donor at any time, provided they have the mental capacity to do so.

What If You Don't Make an LPA?

If you lose your mental capacity and do not have an LPA in place, an application to the court will need to be made on your behalf for someone to be appointed as your Deputy.

This is a far longer, more expensive and more complicated process. Whoever is appointed has to comply with extensive reporting obligations to the court on an ongoing basis.

The LPA is an important opportunity for a donor to make the decision themselves as to who should represent them in the event of deterioration in their mental capacity.

You might be wondering if you truly need an LPA – after all, it’s an extra expense on top of a Will. Our advice would be to think of an LPA as an insurance policy. The worst thing that can happen – and it happens often – is for your family to have to stand by watching helplessly unable to help or make decisions, because nobody will listen to them. If there are no attorneys named in an LPA, they will have no powers to act on your behalf in your best interests should the worst occur.

The sooner you start thinking about an LPA, the better – in fact, as soon as you have property, assets, and investments, start thinking about making your Will and putting a property and finance LPA in place. You should consider a health and welfare LPA from the age of 18 onwards.

You’re not just protecting yourself with an LPA, you’re also protecting your family from a difficult legal decision-making process. Being prepared could save a lot of pain and heartache later on.

Our Offices

Lasting Powers of Attorney Support at Parfitt Cresswell

At Parfitt Cresswell, our team of experts have a wealth of experience across matters concerning Later Living including Lasting Powers of Attorney. We can help you in creating an LPA for yourself or a loved one ensuring your future is secure.

To assist you, why not take advantage of our complimentary initial consultation with one of our friendly and experienced Later Living legal experts who can provide you with an overview of your options and assist you in dealing with your legal need.