LPAs Lasting Power of Attorney Services
Lasting Powers of Attorney Frequently Asked Questions
Kennan Kay & Co have prepared some of the most common questions asked about Lasting Powers of Attorney.
A Lasting Power of Attorney is a legal document under which the "donor", the person making the power, appoints people, known as "attorneys", to help the donor make decisions and act on his/her behalf when the donor lacks capacity. Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005.
There are two types of Lasting Power of Attorney. The first is a Lasting Power of Attorney for Property and Financial Affairs. This power provides authority to the attorneys to deal with the donor’s property and money, savings and investments. The second is a Lasting Power of Attorney for Health & Welfare which allows the attorneys to make decisions amongst other matters with regard life sustaining treatment.
Any individual who is over the age of 18 and who has the capacity to make a Lasting Power of Attorney may do so.
The most common Lasting Power of Attorney is the one for Property and Financial Affairs.
Providing there are no restrictions as to its use, a Property and Financial Affairs Lasting Power of Attorney, may be used by the attorneys as soon as it has been registered at the Office of the Public Guardian. Providing there are no restrictions as to its use, the attorneys may act when the donor has capacity and when the donor lacks capacity.
A Health & Welfare Lasting Power of Attorney again has to be registered with the Office of the Public Guardian but can only be used by the attorneys when the donor lacks capacity to make decisions about his/her health & welfare matters.
You should trust the people you choose to act as your attorneys who should be over the age of 18. Lasting Powers of Attorney are powerful documents and if the powers contain no restrictions the attorneys have full authority to deal with all the donor’s property and financial affairs under a Property and Financial Affairs Lasting Power of Attorney.
Lasting Powers of Attorney are valid until the Donor dies. Where a Lasting Power of Attorney has been registered with the Office of the Public Guardian, the Power needs to be cancelled with the Office of the Public Guardian on the death of the Donor. A Lasting Power of Attorney whether or not it has been registered may be revoked by the Donor at any time, as long as the donor has the capacity to do so.
The prescribed Lasting Power of Attorney form must be completed and executed by the Donor and the Attorneys. The Donor will need to nominate a named person (up to a maximum of five named persons may be nominated or a minimum of one) and also a Certificate Provider (who confirms the Donor’s capacity and understanding of the Power) before the form can be completed. Notice is given to the named person of the Donor’s intention to make the Power and at the same time application is made at the Office of the Public Guardian to register the document. The named person has three weeks in order to make an objection to the registration of the Power. There are limited prescribed grounds under which the named person can make an objection. If no objections are received by the Office of the Public Guardian within the aforementioned time frame, the Office of the Public Guardian will proceed with the registration process which can take up to twelve weeks to complete.
If you need help in making a Lasting Power of Attorney of either type then contact our specialist solicitor at Kennan Kay & Co both of whom would be delighted to offer their assistance.
Before the introduction of Lasting Powers of Attorney by the Mental Capacity Act 2005 individuals could complete an Enduring Power of Attorney. Under an Enduring Power of Attorney attorneys can only deal with the donor’s property and financial affairs. There is no authority given under an Enduring Power of Attorney for attorney’s to act in respect of health & welfare matters. Since the introduction of Lasting Powers of Attorney in October 2007, it is no longer possible to make Enduring Powers of Attorneys.
All Enduring Powers of Attorney made before October 2007 are still valid.
Enduring Powers of Attorney may be acted upon immediately providing there are no restrictions in the power. Enduring Powers of Attorney differ from Lasting Powers of Attorney in that the attorneys have an obligation to register the Enduring Power of Attorney as soon as they have reason to believe that the donor has become or is becoming mentally in capable of managing his/her own affairs.
If you are finding the registration process of Enduring Powers of Attorney difficult to understand, then contact “our specialist solicitor at Kennan Kay & Co both of whom can provide invaluable advice and guide you through the process.
A Deputy is a person who is appointed under a Deputyship Order by the Court of Protection to deal with another person’s property and financial affairs or health & welfare or both.
A Deputy is appointed where a person lacks capacity to make his/her own decisions with regard to property and financial affairs and/or health & welfare matters and that person has not previously put in place a Lasting Power of Attorney.
The process of appointing a deputy can be a long winded affair. In many cases a person who wishes to be appointed Deputy over somebody else’s affairs needs to apply to the Court of Protection for permission to act under the Mental Capacity Act 2005. Only then can that person commence proceedings to be appointed as Deputy.
If you are finding the Court of Protection process completed and a bit of a minefield, then contact our specialist solicitor who will be able to offer the relevant guidance.