Powers of Attorney
Until 1 October 2007, it was possible to grant two types of power of attorney: ordinary powers of attorney and enduring powers of attorney (EPAs),
Unlike an ordinary power, an EPA continues to be effective after the person who is making the power of attorney ( commonly referred to as the Donor) loses mental capacity. Since 1 October 2007, it has not been possible to create new EPAs, but EPAs created before 1 October 2007 continue to be effective. From 1 October 2007, EPAs were replaced by Lasting Powers of Attorneys ( LPAs)
There are two types of LPA:
An LPA that grants authority in relation to the your financial decisions.
This type of LPA can allow the person appointed ( known as the attorney) to do a variety of things relating to your finances for example – sell your property, make investments on your behalf, operate your bank account and pay your bills. The attorney can use the LPA while the donor still has capacity to make these decisions for themselves, unless you specify otherwise in the LPA. We ensure that LPA’s are custom drafted for you and your circumstances.
An LPA that grants authority in relation to the your health and welfare.
This type of LPA can only be used when you have lost capacity (or your attorney holds the reasonable belief that you have lost capacity.) Your attorney can make decisions about your medical treatment, but cannot make decisions about life-sustaining treatment unless you specifically permit this in the LPA. The attorney can also make decisions about where you live and how you spend your time unless you specify otherwise in the LPA. Time and care needs to be taken in drafting these documents to ensure that they reflect your wishes.
BEING AN ATTORNEY
WHO CAN BE AN ATTORNEY
- A health and welfare attorney must be over the age of 18 but otherwise there are no restrictions.
- A property and financial affairs attorney who is an individual must be at least 18 and not declared bankrupt.
- A trust corporation can be an attorney.
- A donor cannot insist upon someone being their attorney.
If you have appointed your spouse or civil partner the appointment will cease if the marriage or civil partnership has been dissolved unless you specifically provide otherwise in the LPA.
WHEN CAN AN ATTORNEY START ACTING
An attorney can only act when the LPA has been registered with the Office for the Public Guardian ( the OPG). A health and welfare attorney can only act when you have lost capacity. The rules relating to Enduring Powers of attorney are different and the EPA doesn’t have to be registered.
WHAT IS YOUR ATTORNEYS ROLE
We have produced a helpful guide to explain an attorneys role which you can access free of charge here
WILL YOU NEED TO PAY YOUR ATTORNEY
In general an attorney is entitled to any out of pocket expenses but not to be paid unless the power of attorney itself provides for them to be paid.
WHAT IF I HAVE APPOINTED TWO OR MORE ATTORNEYS AND THEY CAN’T AGREE
If more than one attorney has been appointed the power itself will set out how them may act – i.e can they make decisions on their own or do the decisions have to be joint decisions. If an attorney has made a decision on their own but other attorneys don’t agree with it then at first the attorneys should try to discuss the matter, if that doesn’t resolve the issue then an application can be made to the Office of the Public Guardian who will make a decision based on the evidence presented to it.
For a free enquiry, please call us on either 01938 552545 or 01686 625134, email us at [email protected] or complete a Free Online Enquiry.