A power of attorney is a legal document by which a person (the donor) gives someone else (the attorney) authority to make certain decisions on his or her behalf.
There are various types of powers of attorney. However, for many people, the most appropriate form of power of attorney is a Lasting Power of Attorney (LPA).
There are two types of LPAs:
A Property and Affairs LPA: This allows you to delegate authority over your property and finances. This LPA can be used both when you have capacity to act and when you lack mental capacity.
A Health and Welfare LPA Attorneys: This allows you to delegate authority in relation to health and welfare care decisions. Unlike the Property and Affairs LPA, this can only be used when you lack mental capacity. This document might also include the ability to give or refuse consent to life sustaining treatment.
A power of attorney is an important and powerful document. You should take care as to whom you appoint. Attorneys should be relatives, friends or professionals who can be trusted always to put the donor’s best interests and well being first and are equipped to do so. Despite professionals’ fees, an enormous amount can be done through the use of standing orders and streamlined procedures to keep the attorney’s time, and hence the fees, to a minimum.
You can appoint more than one attorney. In such a case, you can appoint them to act together in all decisions (‘jointly’), together or separately (‘jointly and severally’), or a mixture of the two. The latter can cause problems when using the power, so you may wish to take advice from a member of our team first. Finally, you can also appoint a substitute attorney, in the event that your first choice is unable to act for you.
Registration
Your attorney will only be able to act when the LPA has been properly executed according to certain legal formalities. One such formality is that the document be certified by a person who can confirm that (i) you understand the nature and scope of the document, (ii) you have not been pressured into signing the power and (iii) there has not been any fraud or another reason why you cannot make the power.
Once the power is properly completed and signed, it must then be registered with the Office of Public Guardian before it can be used. Enduring Powers of Attorney (EPA)
Many clients have existing EPAs, which was the precursor to the LPA. If you have an EPA, which was correctly signed 1 October 2007, it can still be used, but only with regard to your property and financial affairs. Therefore, if you wish to delegate authority over your health or welfare you will need the health and welfare LPA.
Alternatives to the LPA or EPA
If you lack capacity to deal with your finances, it may be necessary to make an application to the Court of Protection for help. One such application might be for a Deputy - another person who can make decisions on your behalf. Process is costly and time consuming.
In most cases, practical decisions relating to your health and welfare can be made on your behalf by health professionals and your next of kin, without the need to approach the Court.
Without a formal document outlining your wishes, disputes can arise. Indeed, failure to keep immediate family informed can cause bitter family arguments. Take steps now to avoid potential trouble by choosing your attorney and tell him or her how you wish them to act on your behalf, should the need arise.
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