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Lasting Power of Attorney’s: The Law – Part 1

Lasting Power of Attorney’s: The Law – Part 1

An introduction to Lasting Powers of Attorney

 

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which is created by a person (the donor) who grants a person (attorney or donee) the authority to act on their behalf and in their name by either supporting them to make decisions or to make decisions on their behalf.

 

Who can make a Lasting Power of Attorney?

Any individual over the age of eighteen who has mental capacity can make an LPA.

 

What is mental capacity?

People frequently confuse mental capacity with the term mental illness. Having a specific mental illness or condition will not necessarily mean that somebody does not have mental capacity. Conditions such as depression do not necessarily prevent a person from making decisions nor does having an illness from a physical accident.

The Mental Capacity Act 2005 specifically outlines under what circumstances someone lacks mental capacity, the act says:

“… a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

The question that arises from this is, does mental capacity vary? An individual who suffers from dementia may recall certain events occurring and discussions taking place on one occasion but may forget when questioned about this on a separate occasion. To this The Mental Capacity Act 2005 says that a person is unable to make a decision if they cannot; understand the information relevant to the decision, retain that information and/or use or weigh up that information as part of the process of making the decision.

The Mental Capacity Act 2005 further reiterates that a certificate provider must sign and confirm that in their opinion and at the execution of the donor’s document that the donor has fully understood the purpose of the Lasting Power of Attorney, and all that is contained in it, and further to that the authority that is given to his/her donee.

 

What are the different types of Powers of Attorney?

There are several different types of Power of Attorneys, but the most common are:

  • The Financial Decisions LPA which allows the nomination of someone to make decisions in respect of money and property. This includes managing finances such as bank, investment and building society accounts, having the authority to pay bills, sell the home so long as they are acting in the best interest of the donor, collect any form of benefits and pensions and oversee and manage any further investments.
  • The Health and Care LPA will allow the nomination of someone to make decisions concerning health and welfare. This could be involve making decisions as to daily routine, meals, clothing and the decision as to whether to refuse or consent to medical treatment, including life-sustaining treatment which can be refused unless the document specifically states otherwise. Health and welfare LPA also gives attorneys the authority to decide where you live.

 

What is an Enduring Power of Attorney?

Enduring Powers of Attorney (EPA) were proposed by the Law Commission in its 1983 report, The Incapacitated Principle, the Enduring Powers of Attorney Act 1985 came into force on 10th March 1986. As of the 1st October 2007 no new EPAs could be created by a donor however the Mental Capacity Act 2005 retains in Schedule 4 the provisions required to ensure lawful operation of EPAs executed prior to that date. Unlike LPA documents, EPAs could only be registered once the donor had physically lost mental capacity. LPAs also deal with health and welfare issues unlike the enduring powers of attorney.

 

Protect your wishes

You can click here to download our guide to Lasting Powers of Attorney.

If you would like to book an appointment with one of our qualified Estate Planning Consultants who can discuss the benefits of making a Lasting Power of Attorney with you, please contact us on 03455 20 30 40, or by clicking here.

 

Author; Farhan Choudhry

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