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Lasting Powers of Attorney

Lasting Power of Attorney was created by the Mental Capacity Act 2005 (MCA 2005). This Act covers England and Wales and allows you to make decisions whilst you have capacity and want to make preparations for a time when you may lack capacity in the future. Everyone working with and caring for adults who lack capacity, including family and friends must comply with the MCA 2005.

A Lasting Power of Attorney enables you (the donor) to appoint another person or persons (attorney) to act on your behalf and they must comply with the MCA 2005, if you subsequently lose capacity.

There are two types of lasting powers of attorney. They are Health and Welfare Lasting Power of Attorney and Property and Financial Affairs Lasting Power of Attorney.

Health and Welfare Lasting Power of Attorney

A Health and Welfare Lasting Power of Attorney enables you to elect a person(s) to make decisions for you about your personal health and welfare. The appointed person is known as an attorney.

For the Lasting Power of Attorney to become effective the Lasting Power of Attorney must be registered with the Office of the Public Guardian.

Under the Health and Welfare Lasting Power of Attorney, the attorney can make decisions about any or all of your health and welfare matters. This includes issues such as: 1) medical treatment; 2) accepting or refusing types of health care; and 3) whether you continue to live in your own home or move into residential care.

Additionally, you can also give your attorney(s) power to make decisions about ‘life-sustaining treatment’ for you in a Health and Welfare Lasting Power of Attorney. This would enable the attorney the power to make decisions about day-to-day aspects. This includes: 1) your diet; 2) your dress; and 3) your daily routine.

The Health and Welfare Lasting Power of Attorney does not allow the attorney(s) to make decisions about your property and financial affairs. For this you will need to make a Property and Financial Affairs Lasting Power of Attorney.

Property and Financial Affairs Lasting Power of Attorney

A Property and Financial Affairs Lasting Power of Attorney enables you to select one or more persons to make property and financial affairs decisions for you. The appointed are known as attorneys.

Before the Property and Financial Affairs Lasting Power of Attorney can become effective, it must be registered with the Office of the Public Guardian.

Once the Property and Financial Affairs Lasting Power of Attorney has been registered, your attorney(s) can make decisions for you when you have capacity and when you lack capacity.

Many people have a Property and Financial Affairs Lasting Power of Attorney choose an attorney to handle their property and financial affairs because they find it difficult to get about or find it difficult to talk on the phone or are out of the country for long periods of time.

Through the Property and Financial Affairs Lasting Power of Attorney, your attorney(s) can make decisions for you on any or all matters related to your property and finances. The attorney can make decisions regarding the payment of bills, collection of benefits and selling of the house.

Attorneys

The Lasting Power of Attorney gives your attorney authority to make decisions about your personal welfare and property and financial affairs when you cannot make your own decisions.

An attorney has a duty to act within the scope of his or her powers set out in the Lasting Power of Attorney – but the authority conferred by the Lasting Power of Attorney is also subject to the provisions of the MCA 2005. The MCA 2005 also places a specific obligation on attorneys and anyone acting in a professional capacity to have regard to the Code of Practice and act in your best interests. Attorneys also have a duty:

Of care
To carry out the donor’s instructions
Not to take advantage of the position of the attorney
Not to delegate unless authorised to do so
Of good faith
Of confidentiality
To comply with directions of the Court of Protection
Not to disclaim without complying with the relevant guidance

In relation to property and affairs Lasting Power of Attorney there is also a duty to:

Keep accounts
Keep the donor’s money and property separate from their own

Safeguards against abuse

We can take appropriate measures to safeguard against any power(s) being misused or exploited when you lose capacity. We can offer you an auditing service, by inserting a clause into the power requiring the attorney to produce to the firm, on a specified date each year, an account of his/her actions as attorney during the last 12 months. If the attorney fails to render a satisfactory account, we can contact the Office of the Public Guardian.

Office of Public Guardian

The registered Lasting Power of Attorney document will be stamped on every page by the Office of the Public Guardian. A copy of the instrument is retained by the Office of the Public Guardian and the original will be returned to you.

Our service

Our expert team prepare and register the Lasting Power of Attorney to your requirements on your behalf. We offer the following services:

Home visit to take your instructions and any subsequent return visits necessary.
Draft all documentation required and legal advice and guidance
Prepare and witness the original LPA as required by the Public Guardian Office
Preparation and submission of registration documents as required for Office of the Public Guardian
Advising and providing guidance to Attorneys and appointment of them
Dealing with all communication with the Office of the Public Guardian during the long registration process.