Lasting Powers of Attorney

Lewis and Dick provide Lasting Powers of Attorney, which were brought in by the Mental Capacity Act 2005 to replace Enduring Powers of Attorney.

There are two types of LPA, Personal Welfare LPAs and Property and Affairs LPAs.

Personal Welfare LPAs

Attorneys can, among other things, make decisions on where the Donor should live, day to day care and consenting to or refusing medical examination/treatment.

The power can extend as far as consenting to or refusing “life-sustaining treatment” if this is expressly given in the LPA and an Attorney can consent to restraining the Donor if certain conditions are met.

Property and Affairs LPA

Attorneys can, among other things, make decisions on buying and selling property, opening/operating bank accounts, giving other people access to financial information, dealing with benefits, receiving income/inheritance and dealing with tax affairs etc.

The power can extend as far as making gifts on behalf of the Donor.

Protection

The idea of the Mental Capacity Act was to provide further protection for Donors when granting Powers of Attorney and the various safeguards include:

  1. A Donor can appoint Attorneys to act jointly, jointly and severally, or jointly for some matters and jointly and severally in respect of others.
  2. Replacement Attorneys can be appointed to act when the other Attorneys are unable to act for whatever reason. This gives further safeguards in the event that the original Attorneys are unable to act and prevents the power from becoming invalid.
  3. The Donor can choose up to five people to act as “Named Persons” who will be notified when the Lasting Power of Attorney is registered. These people then have the opportunity to object to the registration of the Power of Attorney if they feel that it should not be registered for whatever reason.
  4. A Lasting Power of Attorney must also be signed by a “Certificate Provider”. The Certificate Provider will certify that the Donor has the mental capacity to sign the Power of Attorney. This is usually an independent person and this therefore provides further protection for the Donor.
  5. Property and Affairs LPAs can only be used once registered and Personal Welfare LPAs can only be used once registered and the Donor lacks mental capacity at a particular time in relation to the particular welfare matter.

 

Registration

Once an LPA has been completed and validly executed it needs to be registered before it can be used but does not necessarily have to be registered straightaway.

However, it will take a minimum of six weeks to register and the current waiting time can be up to six months.

If you decide not to register the LPA immediately then this may be a problem as if it is required in the future it may take several months before it can be registered and used.

Applications can be made by the Donor, the Attorneys or Replacement Attorneys (if an event has occurred requiring them to replace an existing Attorney).

Depending on who makes the application, notice is served on:

  • The Named Persons
  • The Attorneys
  • The Donor

They then have five weeks in which to object to the registration.

Flexibility

LPAs can be flexible:

  1. You can decide how your Attorneys are to act (jointly, separately or jointly in relation to some matters and separately in relation to others)
  2. You can provide an order of succession for your replacement Attorneys
  3. You can heavily restrict the powers you give to your Attorneys
  4. You can provide non-legally binding guidance to your Attorneys as to how you would like them to act
  5. You can arrange for your Attorneys to be paid a fee for acting as your Attorney and provide full details
  6. For Personal Welfare LPAs you can give authority regarding “life sustaining treatment” should you so wish 

 

Lasting Powers of Attorney verses Enduring Powers of Attorney

All EPAs created on or before 30th September 2007 are still valid and can be used and registered when a Donor loses capacity as before. Those made after this date are invalid.

You may still wish to make a Personal Welfare LPA to run alongside an existing EPA as this was beyond the scope of EPAs.

What we can do for you

  1. We can prepare Personal Welfare and Property and Affairs LPAs.
  2. We can deal with the registration of all LPAs.
  3. We can act as a Certificate Provider for your LPA.
  4. We are also able to act as a professional Attorney under a Property and Affairs LPA should you require an impartial person with expertise in this particular area.
  5. We are also able to register existing valid EPAs that you may already have.

 

Contact

James Winfield     

Head of Department

020 8393 0055

James.Winfield@lewis-dick.com