Wednesday, 3 October 2007

New Lasting Powers of Attorney - an insight

My previous post warned of the end of Enduring Powers of Attorney - Deadline Looming - the end of EPA's

It's now October and Lasting Powers of Attorney are now in place. Following is an insight into why you need one and how they work for you.

If you were to be incapacitated in the future, either physically or mentally, and, as a consequence, were unable to deal with your own affairs then awful problems would arise.

A spouse and other family members would not be legally able to deal with your affairs unless an LPA (or formerly an Enduring Power of Attorney (EPA) signed prior to the 1st October 2007) had earlier been executed.

Firstly, it should be pointed out that LPA’s are not merely for the elderly; they can be created by anyone and are a sensible precaution against accidents, illnesses and injuries that can incapacitate a person at any age. It is for this reason that provisions should be taken to avoid any complications that may arise if an LPA is not in place.

An LPA is a formal agreement created by deed in which one person (‘the Donor’) gives another person (‘the Attorney’) authority to act in their name and on their behalf. In effect, therefore, while capable of managing your affairs you select somebody who will be responsible for managing your affairs if you subsequently become incapable.

Unlike EPAs, a person can choose to delegate decisions affecting their personal welfare – including healthcare and medical treatment decisions – as well as decisions concerning their property and financial matters to their attorney(s). This will also avoid the full expense of invoking the full jurisdiction of the Office of the Public Guardian (formerly the Court of Protection) which is part of our judicial system that deals with the affairs of those who, by virtue of mental incapacity, are unable to deal with their own affairs.

The Donor can choose whether they wish to make a property and affairs LPA or a personal welfare LPA, or both. There is a separate form for each.

For an LPA to be executed there must be at least one Attorney chosen, but if more than one is chosen then the Donor must decide whether they are able to act jointly (that is they must all act together and cannot act separately) or, jointly and severally (that is they can all act together but they can also act separately if they wish). They can also act jointly in respect of some matters and jointly and severally in respect of others.

The extent of the powers granted
A decision can also be made as to the extent of powers that the Attorney can exercise. A general power in relation to all your property and affairs means that the Attorney(s) will be able to deal with your money or property and may be able to sell your house.

In relation to a personal welfare LPA a general power will include all healthcare decisions except: giving or refusing to consent to life-sustaining treatment (unless the LPA document expressly authorizes this); where the Donor has made a valid advance decision; refusing or consenting to medical treatment for mental disorder where the Donor is detained under the Mental Health Act 1983; or where the Donor is subject to guardianship under the Mental Health Act 1983

If you do not want your Attorney(s) to have such wide powers, you can include any restrictions that you like. For example, you can include a restriction that your Attorney(s) must not act on your behalf until they have reason to believe that you are becoming mentally incapable, or a restriction as to what the Attorney may do.

Certificate Providers
A valid LPA – whether it be a property and affairs LPA or personal welfare LPA – must include a certificate completed by an independent third party known as the “certificate provider” confirming that in his or her opinion:
· The Donor understands the purpose of the LPA and the scope of the authority under it;
· No fraud or undue pressure is being used to induce the Donor to create the LPA ; and
· There is nothing else that would prevent the LPA being created.

Registration of the LPA
The LPA cannot be used until it has been registered with the Office of the Public Guardian. It can be registered at any time after it has been completed and signed by all those who are required to sign. In the case of a Donor or an unregistered personal welfare LPA facing a medical emergency their attorneys would not be authorized to act on their behalf until the power is registered.

Once registered, a property and affairs LPA can be used while the Donor still has capacity (unless it specifies that it cannot) whilst a personal welfare LPA can only be used when the Donor no longer has capacity to make the particular decision affecting their healthcare or personal welfare.

The Donor can name up to five people to be notified when an application to register the LPA is made. An attorney of the LPA cannot be specified as a named person. If the Donor decides not to include anyone to be notified then a second person will be needed to provide an additional certificate. Including a named person is an important safeguard because if he or she lacks capacity at the time of registration they will be relying on these people to raise concerns .

If, after consideration of any objections from the named persons, the application for the registration of the LPA is accepted, then at this time the Attorney(s) has authority to administer the affairs of the Donor and notice of this authority together with a copy of the LPA should be sent to relevant people, such as the bank or building society, so that the account can be changed to enable the Attorney(s) to gain access for the purpose of looking after the Donor’s affairs (if desired).

This registration is a relatively simple and straightforward procedure and does not invoke the full jurisdiction of the Court of Protection referred to earlier, the latter being a very expensive and undesirable procedure.

We would strongly recommend that an LPA is made as soon as possible, even if this is done purely on a precautionary basis. LPA’s can be lodged in our strong room and only brought out and put into operation if necessary.
No-one knows what the future holds. An LPA will provide peace of mind in the event of incapacitation.

3 comments:

mike said...

hi,

What does a mother do, whose 16 year old son lacks both the capacity to handle his financial affairs and the capacity to agree to an LPA. Can she continue to handle his bank account, or must she fill in a form to be his “property and financial affairs LPA?” Can she do so without his involvement? Can you tell me about Making A Will?

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