Sunday 2 October 2011

Frequently Asked Questions on Powers of Attorney

Article by
Sharon Brown
Is my Enduring Power of Attorney still valid?
Since October 2007 it has not been possible to prepare new Enduring Powers of Attorney (EPA’s), but any documents made before that date are still valid.

What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a special type of power of attorney which allows the donor to choose someone to act on their behalf and to make decisions for you if you lose mental capacity. There are two types of LPA, one to cover your Property and Financial affairs and one to cover your Health and Welfare.

Can I have my spouse and my children as my attorneys?
Yes, you can have as many attorneys as you wish, and they should be people you trust implicitly.

When should I make an LPA?
As soon as possible! Unfortunately none of us know what the future holds, so it is best to ensure your wishes are set out as sooner rather than later. An LPA does not have to be used straight away but by ensuring it is in place helps avoid delay in dealing with your affairs if and when it becomes necessary.

When can my LPA be used?
The financial LPA can be used as soon as it has been registered with the Office of the Public Guardian, unless you have specified otherwise. However, the Health & Welfare LPA can only be used once it has been registered and if you are unable to make a decision for yourself because you have lost mental capacity.

Who are the Office of the Public Guardian (OPG)?
The OPG is the government body set up to protect people who lack mental capacity. They are responsible for maintaining the registers of EPA’s and LPA’s.

Are the OPG intrusive?
No. However, if they have concerns over an attorney’s actions they do have the power to investigate but this is only as a safeguard to protect the person who has lost capacity.

Do I have to register my LPA straight away?
No. You can choose when to register your LPA but we recommend that it is done at the same time as making your LPA in order that it is ready for use when you need assistance. If you do not register your LPA and you later lose mental capacity your attorneys can deal with registration on your behalf.

Does my EPA have to be registered?
The process for EPA’s is slightly different to LPA’s. They can be used before they are registered, but this is at the discretion of each financial organisation. Your attorneys have a duty to register your EPA at such time as you have lost mental capacity, or are beginning to do so.

What if I change my mind?
An LPA can be revoked at any time, so long as you have the mental capacity to make the decision to do so.

Does an LPA continue after my death?
No, the authority only lasts for your lifetime.

What happens if I do not have an EPA or an LPA?
If you lose mental capacity and are no longer capable of making your own decisions then someone can apply to the Court of Protection to be appointed as your Deputy. If granted, they will have the authority to access your affairs in a similar way to an attorney. However, the process tends to be more lengthy and costly, and there is no guarantee that the person who applies to assist you is the person you would have chosen for yourself.

FAQ’s on the Property & Financial Affairs LPA

Do I lose control of my money when I sign an LPA?
No, not at all. Whilst you still have mental capacity you retain complete control over your finances, in the same way as if you had not signed an LPA. However, if you have an accident or require some assistance whilst you are in hospital for example your attorneys can assist you and carry out any instructions you give them. You can then take over full control when you are able to.

What decisions are covered by this LPA?
Your attorneys will be able to manage your bank accounts and investments, resolve any banking problems, carry on your business, issue cheques and pay your bills, arrange for any care fees to be paid and ensure that you receive any money you may be entitled to. Essentially, they can do anything that you yourself could do, subject to any restrictions you specify.

Can my attorneys sell my home?
Your attorneys have a duty to act in your best interests at all times and to assist you in making your own decisions as far as possible. If the need arose then they could sell your home if it was deemed to be in your best interests.

FAQ’s on the Health & Welfare LPA

Do I have to have both types of LPA?
No, they are two separate documents entirely distinct from each other. However, we would recommend that you complete both LPA’s to ensure that all of your wishes can be carried out.

Can I have the same attorneys look after my health & welfare as I chose for my financial affairs?
Yes, or you can choose different people.

What decisions are covered by this LPA?
This document enables your attorneys to make decisions concerning any care or treatment you require. For example, deciding what care you need in your own home, who should provide that care, whether you should go into a residential home and complaining about any inadequate care you receive. Treatment decisions include whether or not you should have a particular operation, if you would want certain medication, if an assessment is correct and what should happen if you become unconscious.

Couldn’t my family make these decisions for me anyway?
No. Although family are usually consulted by medical professionals in these sorts of situations the final decision making power remains with the doctor in charge of your care at that time.

If you have any questions that have not been answered by this factsheet or if you wish to discuss any issues in further detail please telephone one of our specialist solicitors, Sharon Brown , on 01992 422128 or by email: Tel: 01992 422 128

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.


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