Lasting Powers of Attorney

Emeritus Legal advise on all aspects of Powers of Attorney

A power of attorney is a legal document where a person (the donor) gives another person or persons the (attorney) authority to make certain decisions on his or her behalf.

Ordinary Power of Attorney (OPA)

You can make an OPA where you have the mental capacity to appoint a person who you trust to become your attorney and act on your behalf if you are incapacitated physically or spend a long out of the country. The attorney acts under the OPA through your consent.

Existing Enduring Powers of Attorney EPA

You or your parents, relative or friend may have created an EPA before 1st October 2007 when LPAs came into existence. The EPA can be used but only in respect of property and financial affairs of the donor. The EPA cannot be used to make decisions in respect of their health and welfare. The donor will need to create a separate LPA Health & Welfare to cover those decisions.
If there is doubt over the donor’s (the person who made the EPA) mental capacity then the EPA should be registered and there is a procedure to follow. If you would like further information regarding this then please contact us to discuss the situation.

Lasting Powers of Attorney

There are two types of LPAs:
1. A property and financial affairs LPA , which allows your attorney authority to deal with your property and finances, as you specify. An LPA property and financial affairs will last even when you have lost the mental capacity to look after and manage your property and financial affairs as opposed to an OPA. An LPA property and financial affairs have now replaced EPAs since 1st October 2007.
2. A health & welfare LPA allows your attorney to make welfare and health care decisions on your behalf, but only when you lack capacity to do so yourself. This could extend, if you wish to giving or refusing consent to the life sustaining treatment.

What happens if you have not made an LPA or EPA?

If you lack capacity to make a financial decision then it may be necessary to for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming and there is an inevitable delay before you get the final order from the Court.

You should view creating LPAs, in particular, as an insurance policy as once it is registered with the Office of the Public Guardian it can be used immediately, thus saving you time. It also works out significantly cheaper than having to go down the Court of Protection route. The key here is planning and not leaving matters until they are too late, particularly, if there are issues surrounding capacity of the person who wishes to make the LPAs.

Your Attorney(s)

You can have up to four attorneys. The attorney(s) will only be able to act when the LPA has been signed by you and your attorney and certified by an independent person that you understand the nature and scope of the LPA and have not been unduly pressurised into making the LPA. You need to choose your attorneys carefully and appoint people who you trust with your money and property. An attorney cannot act if he has been made bankrupt. The LPA will then be registered with the OPG before it can be used. The financial LPA can be used when you have capacity to act as well as if you lack mental capacity to make a financial decision. The welfare power can only be used when you have lost mental capacity.

Advance Medical Decisions/Living Wills

An advance medical decision, often referred to as a living will, is a written statement of your wishes about medical treatment if you become terminally ill or incapacitated. An advance medical decision allows a person to refuse specified treatment in specified circumstances such as:

If you would like to discuss making a Power of Attorney, Lasting Powers of Attorney or an Advance Directive please contact us on 029 2056 7836. If you would prefer to get in touch online, you can email us and we will be in touch shortly.

 

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