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What Is a Lasting Power of Attorney?

February 28, 2012 | Comments: 0 | Views: 190

Have you ever considered what would happen in the event that you become unable to manage your affairs even as you are still alive?

It is possible to appoint one or more of your husband, wife or children, a friend or professional to act for you in the future, by making a Lasting Power of Attorney (LPA). There are two sorts; the first is a Property and Affairs LPA. This is used to appoint one or more attorneys to look after your financial affairs, Property and Affairs LPAs replace the old Enduring Powers of Attorney (EPAs), although if you have an Enduring Power of Attorney, completed and signed by everyone involved before 1st October 2007, it remains valid, and it just can't be updated if your circumstances change. So you may need or prefer to make an LPA instead.

The other sort of Lasting Power of Attorney deals with your Health and Welfare. Decisions might be about a move to a Nursing Home, or consent for medical treatment. You may already have a Living Will or Advance Directive. These are not binding, but merely tools to indicate what your wishes would be in the future in certain circumstances. If you make a Health and Welfare Lasting Power of Attorney, it overrides any Living Will or Advance Directive which you have already made, as it is a binding power giving somebody else, whom you have chosen, the right to make decisions for you as if they were you. You may give your attorney power to make decisions on your behalf giving or refusing life-saving treatment, though your attorney will still not be able to tell doctors to do anything which they are otherwise prevented from doing on your behalf.

The Mental Capacity Act 2005 requires every person to be regarded as able to make decisions for him or herself, unless this is not in fact possible at the time when the decision in question must be made. Every reasonable attempt to help to make the decision must be given by your attorney and/or others. They do not have to approve of your decision - you are allowed to make an unwise decision if you wish. If it is still not possible for you to make the decision needed, then your attorney may decide on your behalf, acting in your best interests at all times, but must take as little action as necessary to achieve the result needed, and with as little interference with your future ability to manage your own affairs as possible.

An Enduring Power of Attorney can be used without being registered. Registration is required only if the person making the Power of Attorney (the Donor) has permanently lost capacity to manage their own affairs or is clearly well on the road to doing so. Registration effectively prevents the Donor managing their own affairs again. Most EPAs are never registered and so nobody apart from the donor and the attorney may realise that the EPA has been made. In a small but worrying minority of cases, this allows unscrupulous or incompetent attorneys to take control of the donor's finances without their own closest family or friends knowing, until too late.

LPAs must always be registered before they can be used at all. A fee of £120 per person is payable to the Office of the Public Guardian (OPG). Registration takes about twelve weeks and simply activated the LPA, rather than proving that you have lost capacity. When the LPA is made, somebody who has known you well for at least two years, or a suitable qualified professional, must go through the form with you to certify that you understand what you are doing, and are not being forced or tricked into making the LPA, and that there is no other reason why such an LPA should not be made. At least one independent person chosen by you should be notified when the LPA is registered. Their details are included on the LPA form, and the OPG notifies them directly to ensure compliance. Provided they are not concerned, the person notified does not have to do anything, but they are given contact details so that they can alert the OPG if they are worried about the arrangements being made or at any later stage.

These additional security measures are an improvement on the old Enduring Power of Attorney arrangements, but they do make the form itself and the registration paperwork in the preparation of a Lasting Power of Attorney longer and more complicated.

Looking for a Salisbury Lasting Power of Attorney? Contact Bonallack & Bishop - Solicitors in Salisbury who specialise in Lasting Power of Attorney production.

Source: EzineArticles
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