Powers Of Attorney

Enduring Power of Attorney

Unfortunately it is sometimes necessary to take over the affairs of a loved one if they have problems with their mental capacity.  Hopefully your loved one will have executed an Enduring Power of Attorney in their lifetime.

 

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The Enduring Powers of Attorney Act 1985 was repealed by the Mental Capacity Act 2005.  It is therefore no longer possible to create a new Enduring Power of Attorney (EPA)

However, EPA’s created before the 1st October 2007, which have been signed by both the person giving the power (the Donor) and the person to whom the power has been given (the Attorney) are still valid.  Your Attorney will still need to register the EPA with the Office of the Public Guardian (OPG) if they have reason to believe that you are, or are becoming, mentally incapable.

You cannot make any changes to an existing EPA

You may consider replacing an unregistered EPA with a Lasting Power of Attorney Property and Affairs.  To do this you must revoke (cancel) the existing EPA.  If the EPA has been registered, it cannot be revoked without the permission of the Court.  Before revoking an EPA you are strongly recommended to seek legal advice.

Tilly Bailey & Irvine can help you through the difficult processes of either registering or revoking an EPA so that you can look after your loved ones affairs with ease

Lasting Powers of Attorney

Planning for the future is difficult.  There may come a time when you require assistance when making important decisions.  You should be considering making a Lasting Powers of Attorney.  These are important and essential documents when planning for the future, as equally important as a Will.

Lasting Powers of Attorney were introduced on the 1st October 2007 as part of the ongoing implementation of the Mental Capacity Act 2005.

A Lasting Power of Attorney (LPA) is a legal document in a special form which allows you (the Donor) to choose someone now who you trust to make decisions on your behalf about things such as your property and affairs or personal welfare at a time in the future when you can no longer make those decisions yourself.

There are 2 forms of LPA:

  • Property and Affairs – to cover all types of property and financial matters to include writing cheques on your behalf, paying bills, collecting pensions and other income, dealing with banks,  building societies and other financial institutions, buying and selling property
  • Personal Welfare – to cover all aspects of personal healthcare and welfare for examples:
  • Whether you continue to live in your own home, perhaps with help and support from social services or whether residential care would be more appropriate for you.
  • Day to day aspects of your personal welfare such as your diet, dress and daily routine.
  • Giving or refusing consent to particular types of health care, including medical treatment decisions

You can make either or both LPA’s.  Because decisions may need to be made that will have financial repercussions, for example the potential cost of treatment or nursing home fees, it is likely that an LPA Personal Welfare will also be required to address the issue of payment.

If you have an existing Enduring Power of Attorney which makes provision for your property and affairs you can create a LPA – Personal Welfare to run alongside the same.

LPA’s can only be used after they have registered with the Office of the Public Guardian (OPG).  In addition for personal welfare decisions to be made not only must the LPA be registered you lack the capacity to make the decision yourself, for example if you are unconscious or suffering from any form of dementia.

Ordinary Powers of Attorney can still be created.

These are still useful where you want someone to act for you over a specific event or for a specific period of time, for example if you spend a great deal of time abroad.  The high disadvantage of an Ordinary Power of Attorney is that it immediately ceases to have effect of you lose mental capacity, even if temporarily.

Because of the complexities associated with the writing of an LPA it is recommended that you consult a solicitor for guidance.  Tilly Bailey & Irvine  can help you create an LPA suitably tailored to your individual needs.