Lasting Powers of Attorney

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Whilst we all hope to live long and happy lives, it is important that we think about injury or ill health so that we are fully prepared, should the worst happen.

A Power of Attorney can be a useful part of this process. A Power of Attorney is a legal document designed to allow you to give someone else the power to act on your behalf and therefore in your name, when you are no longer capable of, or lack the mental capacity to, organise your own financial affairs.

How do I make a Lasting Power of Attorney?

At Spratt Endicott, our lawyers can show you how to set up Lasting Powers of Attorney and make sure that you are appointing an appropriate person. Under the Mental Capacity Act 2005, it is now a new requirement for the document to be signed by a Certificate Provider. This is an individual who goes through the document to ensure that the donor understands its purpose, knows the extent of its authority and is in no way forcing or putting pressure on the donor in order to create the power. Spratt Endicott can act as your certificate provider when preparing the Lasting Power of Attorney and make sure that you are properly protected from anyone forcing or putting pressure on you to set up the process.

Taking on the Attorney Role

If you are asked to become an attorney, it’s important that you consider whether or not you really want the responsibility of the position. Remember that as well as being rewarding, it can also be challenging and time consuming so shouldn’t just be something that you undertake because you feel like you have to. Before making the decision, you should discuss your duties and what will be expected of you fully with the donor. Be very clear, on how the donor sees you acting on behalf of him/her. That way you will know exactly what obligations you are likely to have and how and when the donor would like you to act.

Being aware of the facts is important because in the future you might have to make decisions concerning where the donor will live, whether or not their home should be sold and even the type of medical treatment that they receive.

What are my Legal Duties?

As an attorney, you are required to act in accordance with the five obligations set out by the Mental Capacity Act 2005. These are:

• Every adult has the right to make their own decisions and must be assumed to have the capacity to do so unless proved otherwise;
• A person must be given all practicable help before anyone treats them as not being able to make their own decisions;
• Just because an individual makes an unwise decision, they should not be treated as lacking capacity to make that decision;
• Anything done, or any decision made on behalf of a person who lacks capacity, must be done in their best interests;
• Anything done for or on behalf of the person who lacks capacity should be the least restrictive of their basic rights and freedoms

When can I make decisions on behalf of the Donor?

You must have the donor’s consent before you begin to make decisions on their behalf in the case of an unrestricted EPA (Enduring Power of Attorney). In the case of a restricted EPA the document must be registered with the Office of the Public Guardian.

If you are appointed under a Personal Welfare LPA, the Donor must have lost their mental capacity to make decisions before you can act.

If you are appointed under a Property and Affairs LPA, you can act for the Donor, even if they still have their mental capacity, provided the Donor is happy for you to do so.

When you should seek Legal Advice

You should seek legal advice if you are ever in doubt about when or how you are able to act. For example, the Mental Capacity Act includes very strict regulation on when gifts can be made from the donor’s estate. If you are unclear as to whether you are able to take certain action it is always worth seeking advice before doing so. If you have to register an EPA or LPA, then again, you should seek legal advice.

My relative has not appointed an Attorney – Can I be a Deputy?

If a relative or friend loses their capacity to make decisions and act for themselves you may find yourself in the position of having to act on their behalf. ‘Acting on their behalf’ involves helping them deal with their finances and/or communicating decisions about their care/medical treatment. If your relative or friend has not appointed an attorney to do this for them already and there are still ongoing decisions that need to be made, you can apply to the Court of Protection to become a deputy.

Role and Duties of a Deputy

The role and duties expected of you as a deputy depend heavily on the needs and requirements of the person that you are appointed to assist. The full extent of your role will be decided by the court, who will decide on the powers that you have once you have taken on your role as deputy. It’s important to be aware that your new role might include dealing with a person’s day to day care as well as medical treatment and their financial affairs. Every decision that you make must be authorised by the court and be in that person’s best interests. You must also adhere to the five key principles set out by the Mental Capacity Act as mentioned above.