Power of Attorney
What is a 'Power of Attorney' and who needs one?
Asking somebody to do something for you is an everyday matter: you ask a friend to pick up your dry cleaning or post your letters. But if you want someone to act on your behalf on more weighty matters with full legal authority, so they can buy and sell shares for example, the law requires and provides a means of doing this: a 'Power of Attorney'. A Power of Attorney is a formal, written authority granted by one person (the ‘Donor’) to another person (the ‘Attorney’) enabling the Attorney to act on the Donor’s behalf and manage his interests. A General Power of Attorney can be set up without the need to register it at the Office of the Public Guardian.
What is a 'Lasting' Power of Attorney (LPA)?
If the power of attorney is to be given on a long term basis complications arise in the event of the person giving the power becoming mentally 'incapacitated'. This could happen either because of old age or serious illness or accident. And as medical knowledge and life expectancy advance it is becoming more and more important to plan for a time when you may not be able to make decisions for yourself. You can most effectively protect your assets should you become unable to communicate your wishes in the future, by creating a’ Lasting Power of Attorney' (LPA).
LPA’s were introduced by the Mental Capacity Act 2005 and fully implemented in October 2007 and replace Enduring Powers of Attorney. LPA’s come in two forms:
- Lasting Powers of Attorney Property and Affairs (‘LPA PA’) - most commonly used
- Lasting Powers of Attorney Personal Welfare (‘LPA PW’)
About LPA Property and Affairs (LPA PA)
An LPA PA is a much more complicated document than the old Enduring Power of Attorney and includes a section that has to be completed and signed by someone called a ‘Certificate Provider’. It is a document in a prescribed form that is signed by you (the 'Donor') and witnessed while mentally competent to do so appointing another person (an 'Attorney'– who also has to sign the document and have his signature witnessed) to deal with your property and affairs even after you have lost your mental capacity. The LPA PA has to be registered with the Office of the Public Guardian before it can be used (even when the Donor has no problems with capacity). Once it is registered the Attorney has authority to act on behalf of the Donor (unless this power has been specifically excluded). This means that the Donor can take advantage of being able to delegate responsibilities if, for example, he/she goes on holiday.
What if I don't have an LPA PA?
If you were to become ill or disabled without an LPA PA and were unable to manage your financial affairs yourself, no one could act on your behalf unless he/she first went to court and was appointed your Receiver/Deputy by the Court of Protection. Even your spouse and children would be powerless to act on your behalf. This is very time consuming and costly.
- NOTE All Donors and Attorneys are under a duty to have regard to a number of concepts which were introduced in the Mental Capacity Act 2005 Code of Practice.
Your KEWsWillS consultant will guide you through this process:
FREEPHONE: 0800 597 4667
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