Why should you make a Lasting Power of Attorney?
To make sure you have done everything you can to make it easy for your loved ones to help you if you lose capacity or become physically impaired.
To plan ahead rather than leaving it to chance (none of us know what is around the corner)
To appoint Attorneys of your choice and to ensure there is backup should anything happen to your chosen Attorneys
To avoid having to apply to the Court of Protection for someone to be your Deputy
To ensure that funding issues regarding care can be dealt with
If you would like further advice on any of these issues please do not hesitate to contact us
Appointment of Attorneys
It is possible to appoint more than one attorney. If you do decide to appoint two attorneys then it is necessary to decide whether they should act jointly together so that all decisions and powers required both Attorneys’ permission or jointly and severally which means that the attorneys can act either alone or separately giving more flexibility. It is possible to appoint attorneys to act jointly in connection with some matters and severally in respect of others.
An important factor to bear in mind when appointing attorneys to act jointly is in the event of one of them predeceasing you the LPA would fail as the power was given jointly. Therefore, your LPA should deal with the possibility of an attorney predeceasing you.
You may grant general or limited power. If a general power is granted then the attorneys may manage all your property and affairs. If any restrictions or conditions (now known as preference and instructions) are to apply then they must be clearly stated. Mandy can advise you on suitable instructions and preferences for your particular circumstances.
The Attorney's powers and duties
The Attorney’s powers may be restricted. The LPA can also state that it should only come into operation once you no longer have mental capacity. However, this is not advisable as capacity can fluctuate.
The Attorneys only have limited power to make gifts of your money or property.
Attorneys must observe the Code of Practice to the Mental Capacity Act 2005. The Code provides guidance and information to all those working under the legislation.
An Attorney can make a range of decisions including buying and selling of your house and other assets, dealing with your tax affairs, operating bank and building society accounts and claiming benefit on your behalf. These can be used at your direction while mentally capable and also by the Attorney if you lack capacity to make these decisions.
Health and Welfare Lasting Power of Attorney
It is possible to enter into a Lasting Power of Attorney for Health and Welfare matters giving many people peace of mind that should they lose capacity an Attorney whom they have appointed will have sufficient authority to speak on your behalf to medical staff as to your receipt or refusal of life sustaining treatment.
Further an Attorney can make many decisions on behalf of a person who has lost capacity should they be living in a nursing/care home.
Without a Health and Welfare Lasting Power of Attorney it would be very difficult for representations to be made on your behalf regarding funding for nursing care.
Certificate Provider
A Certificate Provider is either someone who knows you well or a professional person. The Certificate Provider must sign the form to confirm that they have discussed the contents of the LPA with you on your own (if possible) and that they can state that you understand the purpose and scope of the LPA.
Further the Certificate Provider needs to confirm that no undue pressure or fraud is involved in the decision to make an LPA and there are no other factors preventing the creation of the LPA.
Accountability
It is possible to ensure there is some accountability in place that the Attorney(s) has to comply with such as producing annual accounts.
Registration
An LPA needs to be registered before it can be used by your Attorney and it can be registered whilst you still have mental capacity. You can decide when you want your Attorney to be able to use the LPA before the loss of mental capacity or only on such loss.
Advantages of an LPA over an Ordinary Power of Attorney and Enduring Powers of Attorney
It is no longer possible to prepare a new Enduring Power of Attorney. It is possible to register an existing Enduring Power of Attorney. The huge disadvantage of an ordinary Power of Attorney was that as soon as the person giving the Power of Attorney lost capacity the Power of Attorney was invalid. Also, a Power of Attorney was open to abuse with no accountability in place.
It is possible to register an Enduring Power of Attorney when a person loses capacity. However, if it is not registered until capacity is lost this will cause delay at a very difficult time.
An Enduring Power of Attorney enabled an Attorney only to deal with financial affairs and not property or health and welfare matters. Further there is a risk of such a power being abused by the Attorney as it is not possible to control the Attorneys powers to the same extent as a Lasting Power of Attorney not to put in place certain conditions.
If you would like further advice on any of these issues please do not hesitate to contact us
