. What is a Power of Attorney? A power of attorney is a document which authorises someone else to sign legal documents and deal with certain affairs on your behalf. . These are a few types of powers of attorney: 1.Ordinary Power of Attorney 2.Trustee Power of Attorney 3.Enduring Powers of Attorney 4.Lasting Power of Attorney . Other Information: A.Deputies B.Directive/Advance Directive/Living Will . 1. Ordinary Power of Attorney This can be used to deal with a specific issue or to give general power to someone to deal with all of your affairs. This can be useful if for example, you are going abroad and know that legal documents will need to be signed, or legal/financial issues need to be dealt with while you are away. 2. Trustee Power of Attorney This is similar to an ordinary power. However, it is used in connection with trusts where you are a trustee. It can be as specific or general. It cannot last for more than 12 months without being renewed. This type of power of attorney stops being valid if you lose mental capacity to manage your affairs. 3. Enduring Powers of Attorney (EPA) This type of power of attorney can no longer be made. However, EPAs which were completed before 1st October 2007 will remain valid after that date. An attorney given power under a valid EPA made before 1st October 2007 will be able to use it as an Ordinary Power of Attorney even if it has not been registered with the Office of the Public Guardian. An attorney under an Enduring Power of Attorney has a duty to apply to register it as soon as they have reason to believe that you are becoming or have already become mentally incapable of making financial decisions for yourself. If you have already made an Enduring Power of Attorney and as long as you retain the mental capacity to do so, you will be able to make a Lasting Power of Attorney to run alongside an Enduring Power of Attorney. For example, you may make a Personal Welfare Lasting Power of Attorney to provide for decisions about your healthcare and welfare to run alongside an existing Enduring Power of Attorney which only relates to your finance and property affairs. . 4. LASTING POWERS OF ATTORNEY (LPA) An LPA can be made by anyone aged 18 or over An LPA can only be used once it has been registered with the Office of the Public Guardian. We deal with registration on behalf of our clients as part of the service we provide. A LPA is similar to an ordinary power of attorney, but importantly, it continues as a legal document even if in the future, you lose mental capacity to make decisions for yourself, perhaps due to illness or injury. LPAs are more flexible than EPAs (for example you can appoint substitute attorneys under an LPA) but they are much longer documents. If you want to make plans for the future while you still have the mental capacity to handle your own affairs creating an LPA now will allow you to choose one or more people to act as your Attorneys. It is also necessary for an independent third party to complete a certificate of mental capacity of the donor at the time the LPA is signed. We can act as a professional certificate provider and, indeed, this is part of the service we offer to our clients. Why should I make a Lasting Power of Attorney? There can be a number of reasons. People often make Wills because they care about what happens to their assets after they die but what is often not considered is what would happen if you lost mental capacity before death and could not deal with your property and affairs. This is where a Property and Affairs LPA comes in. People who care about taking care of their assets probably also care even more about their health and personal welfare being properly looked after in the event of mentally incapacity. This is where a Personal Welfare LPA comes in. There are two separate types of LPA: - one deals only with property and affairs one deals only with personal welfare. A Property and Affairs LPA allows you to choose your Attorney(s) to make decisions about how to spend your money and the way your property and affairs are managed. However, they must first make every effort to obtain your instructions. Once the document is registered this type of Lasting Power of Attorney can be used by your attorney(s) straight away. A Personal Welfare LPA allows you to choose a person to make decisions on your behalf but relating only to your healthcare and personal welfare. This can include decisions about whether to give or refuse consent to treatment and deciding where you live. This type of LPA can only be used by your Attorney(s) once it has been registered and only when you lack the capacity to make the necessary decisions for yourself. Again, your Attorney(s) must make every effort to obtain your instructions. What if I want to cancel the LPA? If it has not been registered you can simply destroy your LPA. However, if it has been registered with the Office of the Public Guardian it will need their permission to be changed or cancelled. What happens when I die? The LPA is no longer valid and the power of your Attorney(s) will end. Attorneys An attorney must act in the best interests of the donor. 1. You may wish to consider the following when choosing an attorney: - Should it be a relative or a close friend? Would it be better to select an independent attorney, perhaps a professional? 2. How many Attorneys? Where there is more than one attorney appointed, should they act jointly (together and not make decisions independently of each other) or jointly and severally. (That is act together but can also act separately if they so wish). 3. Should you give your Attorney(s) general powers in relation to ALL of your property and affairs, as this could mean they would be able to deal with ALL monetary and property matters, including the selling of your house? It is always possible to impose restrictions on your Attorney(s). 4. The LPA documents can be prepared, but they do not have to be registered at the Court until the donor is becoming or has become mentally incapacitated. Before submitting any application for registration your attorney(s) must give written notice of their intention to your nearest relatives as required by the law. You or your relatives will be able to object if you or they disagree with the proposed registration. 5. If you are a joint owner of a house or other property, you will be classed as a trustee and should seek further legal advice if you wish your attorney(s) to act as trustee(s) on your behalf. We can assist you with any queries. 6. If you do not place restrictions on your attorney(s) or you fail to prepare detailed instructions, they will be able to make use of your property and money without further reference to you; in addition they can make reasonable gifts on your behalf. 7. Your attorney(s) can recover reasonable out-of-pocket expenses if an attorney is a professional businessman, (e.g. solicitor, accountant etc) they may be able to charge for their professional services. However you may wish to order to limit or cap these costs for the future. What if there is no Enduring or Lasting Power of Attorney and you become mentally incapacitated? A. Court of Protection Deputies An application can be made (usually, but not always, by a family member) to the Court of Protection, for that person to be appointed as your “deputy”, to manage your affairs. This is a much more complicated method of proceeding than signing an LPA. The application generally takes much longer to complete and this is likely to be at a time when some urgent action may be required. It is usually a lengthy and costly process and will mean the Court of Protection is actively involved in your affairs from then on. The deputy will be provided with a Court Order, setting out the powers and responsibilities, which may include providing the Public Guardian with an annual account or a report, showing any action taken or decisions made over the year. B. Advance Directive/Advance Directive/Living Will This deals with medical matters only. This type of document is not as broad as a Lasting Power of Attorney but it is a lot cheaper and there are no registration fees. This type of document is not an alternative to a Personal Welfare Lasting Power of Attorney.
This type of power of attorney stops being valid if you lose mental capacity to manage your affairs.
If you are a trustee, an ordinary power of attorney cannot be used to deal with trusts. If you wish to give someone authority to act on your behalf as a trustee, you will need to sign a trustee power of attorney.
If you made an EPA before 1st October 2007 and later lose mental capacity, your attorney(s) must register the EPA with the Court of Protection in order to continue to use it.