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.