Often at some stage in life loved ones may become unable to look after their own affairs, and they will generally want those closest to them to look after their affairs on their behalf.
A Lasting Power of Attorney is a legal document that lets the person who wants their affairs looked after (the ‘donor’) appoint someone to make decisions on their behalf should they become unable to make their own. The person appointed to look after the donor’s affairs are known as the Attorney.
Lasting powers of attorney were created under the Mental Capacity Act 2005, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney (EPA) Their purpose is to meet the needs of those who can see a time when they will lack capacity to look after their own personal, financial or business affairs.
There are 2 types of Lasting Power of Attorney:
1. Property and Financial Affairs LPA
2. Health and Welfare LPA
You can choose one of these or both. In order to apply you must be over 18 have mental capacity, and cannot be bankrupt otherwise the LPA becomes void. However you do not need to be resident in the UK or a British citizen
The property and financial affiars LPA allows the attorney to look after and make decisions on the donor’s finances, property and investments and can be used immediately even if the donor is not incapacitated.
The health and welfare LPA allows the attorney to make decisions on the donor’s general welfare, such as medical treatment, daily routine, or moving into a care home, for example. It therefore allows a donor to plan in advance how they wish to be cared for when they lose capacity. In the case of the Health and Welfare LPA the attorney can only use powers when donor has lost capacity.
In both instances prescribed forms must be completed and witnessed by an independent person. They must then be registered with the Office of the Public Guardian (OPG)
Importantly once a person has lost mental capacity, they will no longer be able to appoint an LPA. If the person’s family or friends then want to be able to make certain decisions on their behalf, they will need to apply for deputyship.
Attorneys have several responsibilities and should always make decisions in a donors best interests, keep their own money separate from the donors, respect the donors confidentiality, and ensure no conflict of interest. If an attorney breaches their duty they an be required to make restitution, and risk a large fine and or up to 5 years in prison if they mistreat their position
It can be reassuring to know that, if you are unable to make a decision for yourself in the future, the person you choose will make these decisions for you.
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