Release date: May 2009

Almost two years after the new Lasting Powers of Attourney rules were introduced, Iain Robson, partner at Close Thornton looks at how the law is working in practice.

There are two types of Lasting Power of Attourney (LPA): one relating to property and financial affairs and the other to personal welfare. Both need to be executed whilst the donor has capacity and will continue until death or revocation. They will also continue if the donor loses mental capacity.

The new rules have significantly increased both the costs and the time taken to register the document with the Office of the Public Guardian (OPG), making it more essential than ever to have the document prepared well in advance of when it is needed and to register it at the same time. Registration currently takes at least 12 weeks if not longer, and, as it cannot be used until formally registered, this can cause problems if it is needed with immediate effect. However, if an LPA has not been prepared before someone loses mental capacity, the alternative is to be appointed by the Court as a Deputy, which is unfortunately an even more arduous and expensive process! Details of the two types of LPA are outlined below:

A Property and Affairs LPA allows individuals to appoint a legally authorised person/s to make decisions about their property and financial affairs should they become incapable of doing so themselves in the future. A Donor can appoint a Property and Affairs Attorney to manage their finances and property while they still have capacity as well as when they lack capacity if they choose, e.g. where the Donor wants to give someone the power to carry out tasks such as paying bills or collecting benefits. It must be made while the Donor is of sound mind and can relate to all decisions about the Donor's property and affairs or can be limited to specific powers.

A Personal Welfare LPA allows individuals to appoint a legally authorised person/s to make decisions about their personal welfare, including whether to give or refuse consent to medical treatment, should they become incapable of doing so themselves in the future. It must be made while the Donor is of sound mind and can relate to any decisions about the Donor's healthcare and welfare, or can be limited to specific decisions. The Attorney(s) can only make decisions that are in the Donor's best interests.

Both types of LPA cannot be used until they have been registered with the Office of the Public Guardian (OPG). They can be registered at any time after they have been made, but the benefit of registering shortly after it has been made is that it will be ready to be used by the Attorney(s) when it is needed.

You can choose as many Attorneys as you wish. You can also give guidance and place restrictions on what your attorney(s) can or cannot do. A Personal Welfare Attorney does not have the power to make decisions with regard to the Donor's property and financial affairs unless the Attorney is also appointed as a Property and Affairs Attorney, and vice versa.

Both LPA documents incorporate a certificate which must be signed by an independent person chosen by the Donor who must confirm that, in his/her opinion, the Donor is making the Lasting Power of Attorney of their own free will and that the Donor understands its purpose and the powers they are giving to the Attorney(s).

To find out more about how Lasting Powers of Attourney could help you or your family, please contact Iain Robson on 01325 466461 or iain.robson@close-thornton.co.uk

BACK