Lasting Powers of Attorney

Protecting Your Assets Before You Die Through A Lasting Powers of Attorney

Introduction

The Lasting Power of Attorney (LPA) was introduced via the Mental Capacity Act 2005 and came into force on the 1st October 2007. Although it replaces the Enduring Power of Attorney (EPA), these documents, if correctly signed, witnessed and registered with the Court of Protection are still legally valid.

The LPA is a much-improved document and comes in two parts, namely, Property and Affairs and Personal Welfare. These are two separate documents and can be implemented individually or jointly, depending upon the wishes of the applicant, known throughout the process as the “donor”.

An important difference with the LPA is that the documents can now be registered with the Court of Protection at any time, instead of waiting for the donor to lack mental capacity.

Additionally, everyone involved in the process must be guided and bound by the Code of Practice, a 302-page document, designed to protect the ongoing interest of the donor. Although lengthy it does strengthen the LPA. Details can be viewed via http://www.dca.gov.uk/menincap/legis.htm

Property & Affairs

This document is very similar to the old EPA in that the donor appoints an Attorney, or Attorneys, to handle their financial affairs. However, there is now a requirement for the Attorneys to consult the donor at all times and they must sign a declaration to always act in the best interest of the donor. The Code of Practice, which accompanies the Act, makes a clear definition of “best interest” and contains a checklist to ensure the Attorneys always follow the interest of the donor rather than themselves, a major concern with an EPA. There must always be a presumption that the donor has mental capacity to be involved in decisions until it has been medically proven otherwise. It, therefore, follows that this LPA can be used at anytime once it has been registered.

Personal Welfare

This document is more far reaching as it confers, on the attorneys, the right to make all decisions, prescribed under the document, on the personal welfare and health of the donor. This document only becomes operative once the donor has lost capacity and can cover such items as: where the donor lives, giving or refusing consent for medical treatment (including life sustaining decisions) and accessing confidential medical, or personal, files. The donor can restrict this list but must make a definitive decision on the life-sustaining question.

Why are these documents necessary?

Without an LPA your next of kin will lose control of your affairs if you lose the capacity to make decisions for yourself. The Court of Protection will take control and although they may confer the right on your next of kin to be involved they will always have control. An article published in Saga magazine detailed the humiliation suffered by the wife of someone critically injured in a road accident and how the Court dominated her life until her husband died two years later. The costs ran into many thousands of pounds.

What should I do?

We do not know if, or when, we will need the benefits of a LPA, but it is clear that much thought needs to be given before you decide when to effect the document and the scope you will require of the powers. However, if you want to be in control of who manages your affairs and you do not want the costs to spiral out of control you need to consider, as a minimum, a Property and Affairs EPA.

We can advise on this very important document and guide you, and your Attorneys, through the process. This can only be done by personal interview and the execution of the document can only be done individually.

Please telephone us to make an appointment to discuss your LPA requirements.