A power of attorney is a legal document which gives a person(s) the authority to act on behalf of another (donor). If you would like to appoint someone to act on your behalf, a power of attorney can be created, provided you have the mental capacity.
Lasting powers of attorney (LPAs) were introduced by the Mental Capacity Act 2005, effective from 1st October 2007 onwards. Often people assume their spouse or next of kin will be able to make decisions on their behalf if they lose mental capacity.
However, if you do not have an LPA in place and you have lost mental capacity, your loved one(s) will need to make an application to the Court of Protection to be appointed as your deputy to make decisions on your behalf (which could lead to a delay and increased costs).
To make sure that you are prepared for this type of situation, you can make an LPA whilst you have the mental capacity to appoint the person(s) you trust to make decisions for you should you be unable to deal with your own affairs. Your attorney must make decisions in your best interests.
Understanding the Two Types of LPAs and Their Importance in Planning Ahead
There are two types of LPAs, “property and financial affairs” and “health and welfare”. Under the Property and Financial LPA, your attorneys can make decisions such as dealing with your bills, the sale of your property and managing your investments.
Under the Health and Welfare LPA, your attorneys can deal with decisions such as your medical treatment, care and where you reside.
The LPAs must be registered with the Office of the Public Guardian before they are used.
It is important to note that an LPA for health and welfare is only effective when the donor is unable to make decisions about their health, but the property and financial document can be used for convenience provided the donor gives consent.
New evidence has shown that as many as 1.7 million people in England and Wales could be living with dementia by 2040.
However, someone can lose mental capacity through other circumstances, such as a car accident or other unpredictable events. Therefore, it is important to plan ahead and ensure that you have an LPA in place to help your loved ones look after you in your time of need.
What is an enduring power of attorney (EPA)?
An EPA authorises an attorney to manage the donor’s property and financial affairs. However, since the repeal of the Enduring Powers of Attorney Act 1985 on 1st October 2007, the creation of such power is no longer possible.
Any EPAs made before 1st October 2007 are still legally valid. However, anything made after this date is now executed as an LPA.
It is possible for a person to have an EPA for property and financial affairs and LPA for health and welfare.
Do I need a power of attorney if I have a will?
An LPA assists you if you lack mental capacity during your lifetime and a Will deals with the distribution of your estate on death, and therefore the two are independent of each other, and both are equally as important, so we would recommend having both.
Contact Our Wills, Trusts & Probate Solicitors
If you require any further advice or assistance in making an LPA or Will, please get in touch with Wills, Trusts and Probate Solicitors below.
0161 941 4000
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