Lasting Powers of Attorney and Court of Protection
A power of attorney is a legal document whereby a person gives another person (the attorney) authority to make certain decisions on his or her behalf.
Types of Lasting Powers of Attorney (LPAs)
There are two types of LPAs:
- A property and financial affairs LPA, which allows your attorney to deal with your property and finances, as you specify
- A health and welfare LPA, which allows your attorney to make health and welfare decisions on your behalf, but 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
As with any power of attorney, it is an important document and you should take care who you appoint. Your attorney should be trustworthy and have the appropriate skills to act in a business-like manner, and keep an account of his or her spending on your behalf.
If you appoint more than one attorney, you can appoint them to act together (jointly) or together and separately (jointly and severally). You may even appoint them to act jointly for some things and jointly and severally for others, although this should only be done with advice, as it may cause problems when using the LPA.
You may also appoint a replacement for your attorney, in case he or she dies 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, and certified by an appropriate person that you understand the nature and scope of the LPA, and have not been unduly pressured into making it. The certificate will also need to confirm there has not been any fraud or other reason why you cannot make it. It must then be registered with the Office of Public Guardian before it can be used. The property and financial affairs LPA can be used both when you have capacity, as well as when you lack mental capacity, to make a financial decision. The health and welfare power can only be used if you lack mental capacity to make a welfare or medical decision.
Existing Enduring Powers of Attorney
Any enduring power, validly made before 1 October 2007, can still be used but only in respect of your property and financial 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 an LPA or EPA and You Lack Capacity?
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, appointing another person to make decisions on your behalf.
This is both costly and time consuming. It is therefore always sensible to enter into LPAs when you still have capacity to do so.
To speak to Christine Butterfield or one of our Wills and Probate Team call 01935 846000.
Click below to view our Lasting Powers of Attorney flyer: