Powers of Attorney

Most people acknowledge that it is important to organise their affairs in the event of their death, which is why making a Will is so important. However, many fail to make similar provisions to organise their affairs should they become unable to look after them themselves during the course of their lifetime.

However, there are powers that can be given to a nominee of your choice to help ensure that your wishes are adhered to.

Lasting Powers of Attorney (LPA) in England & Wales

Under the Mental Capacity Act 2005, individuals can now draw up a legal document in England & Wales called a LASTING POWER OF ATTORNEY (LPA). This document enables the individual (known as a Donor) to appoint a person or persons (known as 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.

Enduring Powers of Attorney (EPA) 

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.

It is essential that such arrangements are made whilst the individual is fit and healthy, as the Law does not allow such arrangements to be made after the event, which can leave families with a multitude of practical problems.

LPAs can be drawn up to cover the management of financial affairs, called a Property & Financial Affairs LPA, as well as the management of personal matters such as medical care under a Health and Welfare LPA. Unlike in Scotland, these cannot be drawn up in the same document.

Naturally, a Lasting Power of Attorney is a very powerful document which can often raise concerns. However, there are numerous safeguards to prevent it from being abused:

  • Before the document can be used, certain people (including the Donor), who are selected by the Donor when drafting the LPA, have to be notified. Anyone can object if they are not happy with the reasons why the document is being brought into effect.

  • Restrictions 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 more information on drafting either a Property and Financial Affairs LPA or a Health and Welfare LPA, please contact an IPW member near to you, just click here.

(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.