About Lasting Power of Attorney
What is Lasting Power of Attorney?
A Power of Attorney (LPA) allows someone to make decisions on your behalf, should there come a time when you lack mental capacity to do so yourself. You can also set up a Property and Financial Affairs LPA to allow somebody to make decisions on your behalf while you have capacity but need assistance in dealing with your finances for example if you can no longer get out of the house to do your banking, or struggle to speak over the telephone.
While you have mental capacity, you can set up an LPA to give someone the authority to make decisions on your behalf. This person is known as an attorney, while the person who makes the LPA is called the donor.
LPAs were introduced by the Mental Capacity Act 2005 (MCA 2005), which came into force fully on 1 October 2007.
There are two types of LPA’s you can make:
1. Property and Financial LPA
This type of LPA may, for example, allow the attorney to pay the donor’s bills, sell their property or investments and make gifts on behalf of the donor. The attorney may use the LPA while the donor still has capacity, unless the donor specifies otherwise in the LPA. This can only be done with the donors permission.
2. Health and Welfare LPA
This type of LPA may not be used until the donor loses capacity (or the attorney reasonably believes that the donor has lost capacity). The attorney may make decisions about the donor’s medical treatment, but the attorney cannot make decisions about life-sustaining treatment unless the donor specifically permits this in the LPA. The attorney may also make decisions as to the donor’s diet, where they live and how they spend their time.
If an accident, illness or age leads to a loss of mental capacity, it can be reassuring to know that your judgements will be in the safe hands of your appointed individual.
We can help you set out who should be in charge of decisions in regard to your healthcare and assets, when you are no longer able to make these decisions yourself.
What is the role of the Attorney?
The Attorney will not need to carry out their role until it is decided that you no longer have mental capacity to make your own decisions. Only when this has been officially established will they need to become involved. At this point, they will then be able to legally manage finances, or make decisions relating to your health or welfare.
When would someone be considered incapable of making their own decisions?
Becoming legally incapable of decision making is known as lacking ‘capacity’.
Under the Mental Health Capacity Act of 2005, there are five principles that must be considered when determining whether someone legally still has mental capacity. These are:
- A person must be assumed to have capacity unless it is established that they lack capacity
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success
- A person is not to be treated as unable to make a decision merely because they make an unwise decision
- An act done, or decision made, under this act for or on behalf of a person who lack capacity must be done, or made, in their best interests
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action
If you haven’t yet got a power of attorney in place, we would advise you to get this set up without delay. It is important to have all legal matters taken care of, even if you’re in great health now. Not having this safety net in place could cause you and your family a lot of unnecessary trauma down the line.
Our expert solicitors will be able to assess your personal circumstances as well as your wishes before providing you with tailored advice.
With care and expertise, we will help you set out your power of attorney with ease.
Enduring Power of Attorney
An Enduring Power of Attorney (EPA) was used before the introduction of Lasting Powers of Attorney in 2007. You may still use an EPA if it was signed before 1st October 2017.
You will need to register an EPA when the donor starts to lose or has lost their mental capacity. This means they can’t make a decision at the time it needs to be made because of a mental impairment.
We can assist in the registration of an EPA on your behalf if the EPA needs to be used on behalf of the donor.
What is the difference between Power of Attorney and Lasting Power of Attorney?
The word ‘lasting’ in the title is in reference to the fact that the power given to the attorney can continue even if the donor (although still alive), no longer has capacity to exercise the power. Power of Attorney isn’t a specific category in itself, but Lasting Power of Attorney (LPA) replaced something known as enduring Power of Attorney (EPA) on 1st October 2007.
If you previously had an EPA, then it is valid but we would still recommend converting it to an LPA due to them being much more flexible in regards to property and finance affairs. At AWH Solicitors, we are more than happy to sit down and discuss the different options with you, so we can find out what would best suit you and your family.
How our expert solicitors can help you
Here at AWH, our LPA solicitors can help you throughout the process of appointing your Lasting Power of Attorney. Getting legal matters like this sorted in a straightforward way can allow you to get on with the things that matter most to you in life. In addition to being able to assist with both forms of LPA, our Power of Attorney solicitors can also help you with:
- The preparation of Wills
- Inheritance Tax Planning
- Trust creation, administration and accounting
- Probate and Intestacy Estate Administration
- Court of Protection Applications
- Deeds of Variation/ Deeds of Family Arrangement
- Residential Care Planning
- Home visits
If you need a chat about your situation in relation to appointing a Lasting Power of Attorney, get in touch with us today.
- What is Lasting Power of Attorney?
Lasting Power of Attorney is a legal tool that can give another trusted person the legal authority to make choices for someone if they become incapable of making the decisions for themselves.
- Do you need a lawyer for Power of Attorney?
You don’t necessarily need a lawyer or solicitor when obtaining Power of Attorney, but it is recommended that you seek legal guidance when applying to make sure that the process is as straightforward as possible.
- Can I dictate when Lasting Power of Attorney comes into effect?
Because of the nature of Lasting Power of Attorney, when you are judged to have lost mental capacity you will not be able to stop your chosen attorney making your decisions for you.
- Can you appoint more than one person to have Power of Attorney?
You can appoint more than one person to have Power of Attorney, but you must specify whether they can act individually or whether they must act jointly.
- What is the difference between Power of Attorney and Lasting Power of Attorney?
The difference between Power of Attorney and Lasting Power of Attorney is not necessarily comparable. It is just that the addition of ‘Lasting’ references the fact that the chosen attorney can make decisions for the donor when they have lost mental capacity but are still alive.
- What is the role of the Attorney?
When the donor has lost mental capacity, the role of the Attorney will be to legally manage matters relating to finances, or the health and welfare of the donor.
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