Safeguarding your future - drafting a lasting power of attorney

By Zach Esdaile 2 years ago

A lasting power of Attorney ('LPA') allows a person to appoint agents that they trust to make decisions on their behalf. The person granting the attorney is called the donor and the person or people been given the power to act are called attorneys.

A donor must be over the age of 18 and have capacity, if this is the case, there are two LPA's which can be obtained:

  1. Finance and Property
  2. Health and Welfare

Finance and Property

A finance and property LPA allows a donor to appoint an attorney or attorneys to undertake tasks such as paying bills and collecting rent. The critical difference between the way a finance and property LPA operates compared to a health and welfare LPA is that a health and welfare LPA cannot operate until the donor has lost capacity.

In relation to finance and property LPA a decision will have to be made as too when a attorney should be able to act. The LPA forms contain a new section which asked when the donor wants their attorney to be able to make decisions . The form gives two options to the potential donor:

  1. To allow attorney or attorneys to act as soon as the lasting power of attorney has been registered or
  2. To not allow the attorney to act until the donor has lost mental capacity.

This is entirely at the discretion of the donor.

If the first option is chosen the finance and property LPA can be used as soon as it is registered. This means that by completing a valid finance and property LPA the don't nor is giving the attorney or attorneys an immediate right to access a the donor's accounts and property and engage with their finances. A LPA can however be revoked.

Health and Welfare

A lasting power of attorney addressing the issue of health and welfare allows the donor to appoint someone to make decisions regarding where they are to live or what medical treatment they should receive, but only once they do not have capacity to make these decisions for themselves.

Within an health welfare LPA, the donor can include a provision allowing the attorney to make life-sustaining treatment decisions for them. This includes decisions in relation to their long-term care as well as their palliative care if this eventuality was to ever occur.

Donors need to be aware that if a health and welfare LPA is granted then this would override any advanced direction previously made in relation to end-of-life treatment.

Who can be an attorney?

The donor must make a decision as to what type of LPA to create, either a health or welfare or property and financial affairs or both.

Before completing any forms the potential donor should consider who should be the attorneys and let them know. They must consent to the application and agree to undertake the responsibilities involved.

If the LPA relates to property and affairs an attorney must be financially solvent for example they cannot be bankrupt or a person who has a debt relief order made against them.
Attorneys must have the skills and ability to act and be able to take on the duties and responsibilities required. The donor's must make sure that the person is trustworthy, has a competence to fulfil the role of attorney and is reliable.

Attorneys must at all-times act in the donor's best interests and if the attorney fails to act appropriately than the registration of the lasting power of attorney can be cancelled and when the donor lacks capacity, upon the application to the court the court can revoke the LPA.

A attorney must consider if a donor has capacity to make decisions themselves if not the must always make the decision in the donors best interests they not take advantage of their situation or put themselves in a position where their personal interests conflict with their donor; act in good faith and respect the persons confidentiality.

In the area of Property and financial affairs attorneys also have a duty to keep accounts and keep the persons money separate from their own finances. The office of public guardian may ask for accounts from attorneys at any time.

How can the attorneys power be restricted

In respect of both lasting power of attorney's, a donor can restrict the attorneys power by placing conditions. However, there are limitations on what conditions can be put in a lasting power of attorney the conditions must be reasonable and not impose an unreasonable burden on the attorneys power to act.

The donor can also cancel the lasting power of attorney at any time as long as they have mental capacity. The legal mechanism for doing this is called a deed of revocation which must be witnessed and signed by both a donor and a witness. If the lasting power of attorney has been registered the deed must be sent to the office of Public Guardian so they can take the lasting power of attorney out of their register and it must also be sent to the attorneys to tell them the power to act under the LPA has been revoked.

Should attorney's be allowed to act individually or only as a collective body

There is a decision to be made when the donor wishes to appoint multiple attorneys (more than one). The donor can either give them the power to:

  1. act either jointly as a team and individually (known as joint and severally) in making decisions or
  2. give them the power only to act jointly as a team and make collective decisions (jointly) or
  3. require them to act jointly - as a team- making some decisions while in making other decisions they are allowed to act as either jointly or as individuals

The problem with the second and third approach is if there is an argument between the attorneys it automatically invalidates the lasting power of attorney. 

In such circumstances, the donor can remove a person from the lasting power of attorney using a legal document called a partial deed of revocation which must be sent to the offers are Public Guardian with the original lasting power of attorney document. This can however only be done whilst the donor has capacity. If it is not specified within the document as to how the attorneys should act it will be presumed that the attorneys can only act as a team i.e. jointly in making all decisions for the donor.

Elderly

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