What is a Lasting Power of Attorney?
From the 1st October 2007, you are able to make a new type of power of attorney, called a Lasting Power of Attorney (LPA). A power of attorney is a legal document where a person gives another person or persons (the Attorney) authority to make certain decisions on his or her behalf.
Types of LPAs
There are two types of LPAs:
- a Property and Financial Affairs LPA, which allows your attorney authority to deal with your property and finances, as you specify
- a Health and Welfare LPA, which allows your attorney to make welfare and health care decisions on your behalf only when you lack mental capacity to do so yourself. This could also extend if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
Who to appoint as your attorney?
As with any other power of attorney, it is an important document and you should take care who you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. If you appoint more than one attorney you can appoint them to always act together or together and independently. You may even appoint them to act together for some things and together and independently for others, although this should only be done with advice as it may cause problems when using the power.
You may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.
When can the attorney act?
The attorney will only be able to act when the LPA has been signed by you and your attorney, certified by a person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of the Public Guardian before it can be used. The Property and Financial Affairs LPA can be used both when you have capacity to act as well as if you lack mental capacity to make a financial decision. The welfare LPA can only be used if you lack mental capacity.
Powers and limitations of an attorney
Under a Property and Financial Affairs LPA, unless the document restricts it, an attorney can do almost anything with the Donor’s finances that the Donor could do personally. However, there are some limitations as follows:
Attorneys can only make gifts on ‘customary occasions’ such as Christmas and birthdays, on marriage or formation of civil partnerships, or other such occasions where it is customary to give presents.
Attorneys acting under LPAs may not act in any trusteeships on behalf of the Donor. A special Trustee Power of Attorney is required.
Existing Enduring Powers of Attorney
Any enduring power validly made before 1st October 2007, will continue to be able to be used but only in respect of your property and affairs. If you wish to give authority over your health or welfare you will need to make a Health and Welfare LPA.
What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming.
Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes you can give a person(s) authority to make those decisions on your behalf by making a Welfare LPA.
How can we help?
Because of the far-reaching nature of a Lasting Power of Attorney, it is not something that should be done without first obtaining proper legal advice. If you wish to receive further advice on the creation or registration of Lasting Powers of Attorney, or the administration of someone’s Financial affairs under a Lasting Power of Attorney or an Enduring Power of Attorney, please call 01437 776917 to speak to Callum James or e-mail CJ@eaton-evans.com.
