Lasting Powers Of Attorney
Lasting Powers Of Attorney
Just supposed you became incapable of dealing with
things- for whatever reason, even temporarily, if not permanently. What would
the implications be?
For some, this is a situation they have prepared
for already. What about you?
- Who would
you want to act for you?
- Who has the
legal authority to act in you place?
By making sure you have Lasting Powers of Attorney
(LPAs) in place, your affairs can be taken care of by people you have
nominated, whilst you are not able to deal with them yourself.
Lasting Powers of Attorney (LPA) in England & Wales
Under the Mental Capacity Act 2005, individuals can
now draw up Lasting Power of Attorney (LPA). This enables the individual (the
Donor) to appoint a person or persons (Attorneys) to look after their affairs
in the event of mental and/or physical incapacity, perhaps due to infirmity in
old age, illness or accident.
There are two types / separate
documents/applications:
- Lasting
Power of Attorney for Property and Finance
- Lasting
Power of Attorney for Health and Welfare
Note: In Scotland, these cannot be drawn up in
the same document..
It is vitally important that when LPAs are applied
for, the Donor has the requisite Mental Capacity to understand what they are
doing. The Law does not allow such arrangements to be made after the event,
which can leave families with a multitude of practical problems.
A Lasting Power of Attorney is a powerful document
which can often raise concerns. However, there are numerous safeguards to
prevent it from being abused:
Before the document can be registered (authorised), certain people
(including the Donor), have to be notified. Anyone can object if they are not
happy with the reasons why the document is being brought into effect.
Restrictions and wishes can be included on what the attorneys can and
cannot do under the authority of the documents, and advice or guidance can be
included by the Donor about how they would like the Attorney(s) to act.
When the LPA is signed, a certificate must be completed by a
professional or someone who has known the donor for at least two years. This is
to confirm that the person making the document understands the meaning of the
LPA and the consequences of it.
Just like a Will, an LPA can be updated or cancelled at any time should
circumstances change. This is provided that the individual has the capacity to
do so.
For help, please contact your local IPW
Professional member near to you, just click here.
The OPG ( Office iof the Public Guardian) can be
found here:
https://www.gov.uk/government/organisations/office-of-the-public-guardian
Enduring Powers of Attorney (EPA) in England and
Wales
Until the 1st October 2007 it was possible in
England & Wales to prepare an Enduring Power of Attorney, appointing
someone to manage your financial affairs on your behalf if you became unable to
do so. Under the provisions of the Mental Capacity Act 2005, new Enduring
Powers of Attorney cannot be made, although existing EPAs continue to be valid.
(Continuing) Power of Attorney in Scotland
In Scotland, documents similar to a Lasting
Power of Attorney can be drawn up which give an individual authority (known as
a Granter) to another person or persons (known as attorneys) to deal with
aspects of the Granter's affairs. This could relate to financial/property
matters and/ or personal welfare.
Powers relating to the financial /property
affairs are known as Continuing Powers and may be given with the intention of
taking effect immediately, and continuing upon your incapacity or beginning
only on your incapacity.
Welfare powers cannot be exercised until such
time as you have lost the capacity to make these decisions.
You can give whatever powers you choose to your
attorneys and/or restrictions the powers. A power of attorney document should
contain either continuing powers, welfare powers or a combination of both. The
power of attorney must be signed by a solicitor to confirm that the Granter
understands the document.
And like a Will, a Power of Attorney can be
cancelled or updated at any time should your circumstances change. This is
provided that you have the capacity to do so. For more information on drafting
either a Power of Attorney with or without continuing powers, please contact an
IPSW member near to you, just click here.