Lasting Powers of Attorney
A power of attorney is a legal document where a person (“the donor”) gives another person or persons (“the attorney/s”) authority to make certain decisions on his or her behalf. Unlike an ordinary (or “general”) power of attorney, a Lasting Power of Attorney (“LPA”) continues to be valid even if the donor loses the mental capacity to deal with his or her own affairs.
Types of LASTING POWERS OF ATTORNEY
There are two types of LPA:
- A property and affairs LPA, which allows your attorney authority to deal with your property and finances, as you specify. If you wish, this type of lasting power of attorney can be used while you still have capacity to deal with your own affairs.
- A health and welfare LPA, which allows your attorney to make welfare and health care decisions on your behalf, but only when you lack mental capacity to do so yourself. This could extend, if you wish, to giving or refusing consent to the continuation of life-sustaining treatment.
WHO CAN ACT AS AN ATTORNEY?
- A donor can choose anyone they like to be their attorney, provided the person is over 18 and, in the case of an LPA for Property and Financial Affairs, is not bankrupt. If you are asked to take on this role you will need to consider whether you are able and willing to take on the responsibility it involves, and if so, you should discuss matters in detail with the donor. If you are an attorney for finances you will need to know how to access information about their assets if it becomes necessary, and if you are appointed in relation to health and welfare you should ensure you are aware of their wishes for future care and medical treatment. You must also be familiar with the guidelines in the Mental Capacity Act Code of Practice, which tell you what you can and cannot do as an attorney.
- You may be asked to act as an attorney on your own, but often a donor may appoint more than one attorney. The LPA will tell you whether you must make decisions ‘jointly’ – which means all the attorneys must act together and sign all papers and cheques, or ‘jointly and severally’ – which means you can make decisions either together or on your own.
When can the Attorney act?
Your attorney will only be able to act when your lasting power of attorney has been signed by you and your attorney, and has been certified by a “Certificate Provider” who confirms that you understand the nature and scope of the LPA and have not been unduly influenced into making the power. It also needs to be signed by your attorneys. It must then be registered with the Office of the Public Guardian (“OPG”) before it can be used.
Existing Enduring Powers of Attorney
An existing Enduring Power of Attorney, validly made before 1 October 2007, will continue to be valid. It can only relate to your property and affairs, and does not give authority to deal with health and welfare
We can help with the following:
- Preparation and registration of your Lasting Powers of Attorney, including advice on who you should appoint and they should be allowed to act, and whether any restrictions or conditions should be included in the document.
- Acting as a Certificate Provider or arranging for a medical or social work professional to act in this role for you.
- If you wish, you can appoint Directors of Hayes + Storr to be your attorneys.
- Storing the original documents indefinitely at no cost, and providing you with certified copies for use by your attorneys.
- Registration of Enduring Powers of Attorney in the event that the donor has lost or is beginning to lose mental capacity.
OBJECTING TO THE REGISTRATION OF AN LPA
- In some cases, the appointment of an attorney is disputed. You can object to the registration of a Lasting Power of Attorney, if you know about it in advance, by contacting the Office of the Public Guardian (OPG). In the past, it was obligatory to notify family or friends when an application for registration of an LPA was made. However, this is now optional, so it may be that you don’t become aware of an appointment until it has taken effect. If you think that someone who is already appointed as an attorney is acting improperly, you can ask the OPG to investigate. If you are in this situation we would suggest that you seek the advice of a solicitor, who can guide you on the procedure and likely outcome.