DYNE DREWETT SOLICITORS LIMITED.

Powers of Attorney

A Lasting Power of Attorney (LPA) is a legal mechanism by which you (‘the donor’) can appoint one or more persons (‘attorneys’) to act on your behalf. The ‘Lasting’ element of these Powers means that you can appoint someone to make decisions on your behalf should you lose the mental capacity to make such decisions at some future time. Lasting Powers of Attorneys replaced Enduring Powers of Attorney (EPA) in October 2007, although any EPA that you currently have remains valid.
 

There are two types of LPA:

• Lasting Power of Attorney for Health and Welfare – whereby you appoint one or more person(s) to make decisions in relation to your personal welfare;
• Lasting Power of Attorney for Property and Financial Affairs – whereby you appoint one or more persons to make decisions on your behalf in relation to property and affairs

What types of decisions can be made under a Lasting Power of Attorney for Health and Welfare?

Personal welfare decisions are those that pertain to your welfare, such as medical decisions (giving or refusing consent to medical treatment including life-sustaining treatment if the attorneys are so authorised under the LPA);

• decisions as to where you live and with whom;
• accessing personal information such as medical records;
• deciding what you wear, what you eat and how you spend your day.

What types of decisions can your Attorney(s) make under a Lasting Power of Attorney for Property and Financial Affairs?

An attorney under this type of LPA can make any decision you can make regarding your property and affairs, such as;

• buying or selling property;
• managing investments;
• running a business;
• accessing and using your banks accounts;
• obtaining financial information.

When does the Power operate from?

A Lasting Power of Attorney – Property and Financial Affairs can operate from the time you make it should this be what you would prefer.

A Lasting Power of Attorney for Health and Welfare will only ever be able to be used where you do not have the mental capacity to make that decision yourself.

However, before either type of LPA can be used, it must be registered with the Office of the Public Guardian.
 

Who can you appoint as your Attorney(s)?

• You can appoint up to a maximum of 5 attorneys.
• For a Lasting Power of Attorney – Property and Financial Affairs, you can appoint one or more persons of 18 years or older and/or a trust corporation.
• For a Lasting Power of Attorney for Health and Welfare, you can appoint one or more persons of 18 years or older.
• You should ensure that the persons you choose are individuals whom you trust completely, and who will act in your best interests.

How will the Attorneys make decisions if you appoint more than one person?

You can specify in the LPA that your attorneys can act:

• jointly – i.e. your attorneys must act together and make joint decisions;
• jointly and severally – i.e. each attorney can act individually and the attorneys can also act together or
• jointly in respect of some matters and jointly and severally in respect of others.

Can you place restrictions on an Attorney(s)?

Yes. You can specify in your LPA matters which you do not wish your attorney to have the power to make decisions about. You can also place additional duties on your attorneys, e.g. under a Lasting Power of Attorney – Property and Financial Affairs, you may wish your attorney(s) to provide annual accounts to you.

There are some restrictions placed on your attorney(s) by law. For instance, an attorney can never consent to your marriage.
 

What are the Attorney(s)’ duties?

It is an attorney’s duty to act in your best interests at all times

• An attorney should also comply with the principles of the Mental Capacity Act 2005.
• Your attorney(s) must act within the scope of their authority as set out in the LPA.
• Your attorney(s) have a duty to assist you in making as many decisions as you are able to make yourself.
• Your attorney(s) should discuss with you the duties they are taking on under the LPA and should familiarise themselves with your wishes and feelings.
• Your attorney(s) should also take into account any guidance you have specified within the LPA (even though this is not legally binding on them).
• An attorney must also have regard to the Code of Practice.

Can an LPA be cancelled or changed once it has been made?

Yes. You can change or revoke your LPA at any time, provided you have the mental capacity to do so.
 

Why make an LPA?

It allows you to specify in advance who you wish to make decisions for you, should you ever lose the capacity to make these decisions yourself. In this way, you get to choose who makes those decisions for you, rather than having the Court or someone appointed by the Court making those decisions on your behalf.

If you should lose the mental capacity to manage your finances and affairs, your family will not automatically have legal authority to step in and manage your affairs.
 

How can we help?

If you would like to make a Lasting Power of Attorney, we can advise you on the options available and prepare the appropriate documents.

If you are an attorney under a Lasting Power of Attorney, or an attorney under an Enduring Power of Attorney, we can advise you as to your duties and obligations and powers. We can also help you with any applications you are required to make to the Court of Protection.

We can apply to the Court of Protection to register Enduring Powers of Attorney or Lasting Powers of Attorney.

Our usual charging rates will apply and fees will be charged in accordance with the amount of time spent dealing with your instructions.