Guide to Powers of Attorney
Enduring Powers of Attorney (EPA) were replaced by Lasting Powers of Attorney on the 1st October 2007.
If an EPA has already been made it can still be used whilst the donor has mental capacity and can make decisions for themselves. When they are unable to make decisions the EPA must be registered with the Office of the Public Guardian (Court of Protection).
If you have an EPA that has not been registered you could make a Personal Welfare Lasting Power of Attorney in addition to your EPA.
Lasting Powers of Attorney (LPA) came into force on the 1st October 2007 and replaced the Enduring Power of Attorney (EPA) from that date, although EPA’s already set up remain valid.
A Lasting Power of Attorney enables the person making it (the donor) to give someone else (the attorney) the legal right to deal with their affairs. There are two types of LPA available; Property and Financial Affairs LPA and a Health and Welfare LPA.
The donor can appoint their attorney to manage their finances and property whilst they still have capacity to make decisions for themselves. The LPA can contain any number of conditions and restrictions but it will enable to attorney to deal with the donor’s bank and other financial investments. They will be able to buy and sell property. They can deal with the donor’s taxes and benefits and can deal with pension providers.
The LPA cannot be used until it is registered with the Office of the Public Guardian (Court of Protection). It can be registered whilst the donor still has mental capacity. The attorney is under an obligation to act in the donor’s interests at all times, the Court of Protection have various safeguards to ensure this.
The donor can appoint their attorney to make decisions about their healthcare and general welfare including refusal of medical treatment and deciding where you live. These decisions can only be made by the attorney once the LPA has been registered and the donor has lost the ability to make decisions for themselves.
The LPA can incorporate Living Will provisions and again can give attorneys directions and impose conditions and restrictions on the scope of the attorney’s powers.
LPAs are powerful documents and need to be given careful thought before entering into. It would be sensible to consider the scope of the attorneys authority carefully and to discuss this with the prospective attorneys and any relevant health professional, if appropriate.
There is a certificate of capacity which must be completed by an independent third party at the time of signing the LPA. The certificate provider must confirm that they are of the opinion that the donor understands the purpose and scope of the power and that there is no reason why the document should not be valid.
This factsheet is intended as a general statement of the law and does not purport to render specific legal advice. Gotelee are happy to provide specific legal advice and prepare both types of LPA. We are also happy to act as independent certificate providers. Please contact our private client department for further information and a quotation.
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