Lasting Powers of Attorney
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A Lasting Power of Attorney is new form of Attorney that was created by the Mental Capacity Act 2005. The Lasting Power of Attorney effectively replaced Enduring Powers of Attorney from October 1st 2007.
A Lasting Power of Attorney is legal written document that enables an individual known as the "Donor", to grant formal authority to another person (or persons), known as the "Attorney(s)" to take certain decisions on the Donor's behalf in the event of the Donor losing the capacity to make their own decisions at some time in the future.
Unlike Enduring and General Powers of Attorney the establishment of a Lasting Power of Attorney is very onerous and far from straightforward. Your Lasting Power of Attorney must be created using a "standard" form and unlike the General or Enduring Power of Attorney, the Powers given under a Lasting Power of Attorney cannot be excercised until the document has been registered with the Office of The Public Guardian. Prior to that, the Donor must provide a certificate from a perscribed person (such as your Doctor or Financial Advisor) confirming that the Donor understands the Lasting Power of Attorney and that there has been no fraud or undue pressure. As you can imagine, to establish a Lasting Power of Attorney can be quite a costly and time consuming affair!
For England and Wales there are two versions of the Lasting Power of Attorney and they are known individually as;
- Lasting Power of Attorney Property and Affairs
- Lasting Power of Attorney Health and Welfare
A Lasting Power of Attorney Property and Affairs (LPA PA) gives the Attorney the authority to make decisions on behalf of the Donor in respect of his or her Property and Affairs and can be used before or after the Donor losing the capacity to make decisions for themselves. The Donor of the Lasting Power of Attorney can also restrict their Attorneys from acting on their behalf until such times as they lack capacity as described in the Act.
One or more Attorneys can be appointed and they may be authorised to can act either "Together" or "Independantly".
If the Donor has appointed his Attorneys to act "Together", then they must act together and be in agreement with any decision made on behalf of the Donor. Failure to specify how the Attorneys should act would result in the default position of acting "Together".
If appointed to act "Independantly" your Attorneys are authorised to act seperately and they are not required to consult eachother about any decision that they have made.
A Lasting Power of Attorney, once registered with the Office of the Public Guardian,enables the Attorney to make any of the decisions that the Donor could have made with particular reference to the conditions and restrictions contained within the document.
The original LPA PA document itself is sufficient evidence to satisfy the acceptance requirements of Banks and Building Societies and other instituions, though certified copies may be suifficient for other organisations.
Under the Mental Capacity Act 2005, a Code of Practice was prepared which includes guidance for the Attorneys acting under the Lasting Powers. The duties of an Attorney include;
- Having full regard and awareness of the Code of Practice
- Always acting in the best interests of the Donor
- Take reasonable care to avoid the Donor suffering loss
- The Attorney has a duty to maintain accounts of the Donors affairs and keep all Donors money seperate to their own.
- Not gaining any personal advantage or benefit from their position as Attorney
- The Attorney may not delegate their decisions
- Act at all times with the utmost good faith
- Respect the Donors confidentiality
- Comply with any directives issued by the Court of Protection
The Attorney is not authorised under the LPA PA to make any Gifts of the Donors property except as set out below;
- Gifts on Customary occasions such as Christmas, birthdays, marriage etc to people (the Attorney themselves included) who are relations or connected to the Donor in some way with the proviso that the value of the gift is not of an unreasonable value with reference to the Donors circumstances and in particular the Donors financial position.
- A reasonable gift to charity that the Donor may have ordinarily made or where they might have been expected to make such gifts
The LPA PA itself can carry restrictions or conditions on making gifts as determined by the Donor at outset.
A Lasting Power of Attorney Property and Affairs (LPA PW) authorises the Attorney to make decisions for the Donor in respect of his or her general Personal Welfare, for example decisions about how the Donor is cared for or where he or she lives. Unlike A Lasting Power of Attorney Property and Affairs (LPA PA), the LPA PW can only be used when the Donor lacks capacity under the Mental Health Act 2005. The LPA PW cannot be used by the Attorney to make any decisions on behalf of the Donor of a financial nature.