ProtectionFeb 10 2020

Why your client needs a Lasting Power of Attorney

  • Explain the importance of setting up a Power of Attorney
  • Define some of the responsibilities
  • Describe how to register a Power of Attorney
  • Explain the importance of setting up a Power of Attorney
  • Define some of the responsibilities
  • Describe how to register a Power of Attorney
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CPD
Approx.30min
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CPD
Approx.30min
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CPD
Approx.30min
Why your client needs a Lasting Power of Attorney

However, the Attorney(s) had the obligation to register it with the OPG if the Donor was becoming or became incapable of managing their own affairs.

While no new EPA can be made or amended, any created prior to October 2007 are still valid.

From October 2007, EPAs were replaced by LPAs, which can be created for: 1) financial decisions; and 2) health and welfare decisions.

These powers are given under two separate documents:

  • Property and Financial Affairs (financial decisions)

An LPA created to deal with property and financial affairs for a Donor can only be used after it has been registered with the OPG.

The LPA can be used even if the Donor has capacity, with their permission, unless it contains restrictions.

  • Health and Welfare

An LPA created to make decisions about the health and welfare of an individual can only be used after registration with the OPG, as with those for property and financial affairs.

However, unlike the Property and Financial Affairs LPA, this LPA cannot be used if the Donor still has capacity.

Practical steps to setting up an LPA

The first consideration is the age of the Donor, who must be at least 18 and have the necessary mental capacity and understanding of the nature of an LPA.

It is then up to the Donor to choose their Attorney(s).

If appointing more than one Attorney, consideration must be given to what basis the Attorneys are to work together.

Whilst Attorneys do not need any legal training, it goes without saying that those chosen need to be trustworthy and reliable

It is also worth considering a substitute; a replacement Attorney in the event their first choice of Attorney(s) cannot act for some reason.

Whilst Attorneys do not need any legal training, it goes without saying that those chosen need to be trustworthy and reliable.

They must also be aware of the Mental Capacity Act 2005 and The Code of Practice which provides guidance to Attorneys.

The choice of attorney may vary depending on which LPA is being considered.

For example, for a property and financial affairs LPA, the attorney must not be bankrupt and must know enough about money matters to undertake their role effectively and competently.

Give time for consideration

It is important for the Donor to give their chosen Attorneys the opportunity to think carefully about whether they are prepared to take on the responsibility, including whether they have the time or are in a position to work with another attorney, if the Donor is appointing more than one.

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