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Ellie Taylor

Solicitor - Brighton & Hove

21st April 2020

Powers of Attorney – everything you need to know to make sure your personal affairs are in order

What is an Enduring Power of Attorney and a Lasting Power of Attorney?

An Enduring Power of Attorney and a Lasting Power of Attorney are legal documents that formally appoints someone (known as an attorney) to help you manage your affairs.

Your appointed attorney is someone who will be able to help you make decisions or make decisions on your behalf if you are unable to do so on your own. This normally occurs when you ‘lack mental capacity’ as a result of an accident or becoming ill.

What is the difference between Enduring Powers of Attorney and Lasting Powers of Attorney and when did they change?

An Enduring Power of Attorney only relates to decisions made about your property and financial affairs whereas there are two types of Lasting Powers of Attorney – one for decisions made about your property and financial affairs; and one for decisions made about your health and welfare.

A Lasting Power of Attorney for property and financial affairs is essentially the same as an Enduring Power of Attorney. Remember, neither of these documents cover decisions relating to your health and welfare.

In October 2007, Enduring Powers of Attorney were replaced with Lasting Powers of Attorney. One of the main changes was to introduce the new Lasting Power of Attorney relating to health and welfare decisions that the previous Enduring Power of Attorney did not cover.

A Health and Welfare Lasting Power of Attorney gives your attorney authority to make decisions such as where you live, your medication, diet and also life sustaining treatment decisions.

The other main difference between an Enduring Power of Attorney and a Lasting Power of Attorney is that the latter must be registered with the Office of the Public Guardian before it can be used whereas an Enduring Power of Attorney can be used from the moment it is signed with the consent of the person who made it.

Why should you review your Enduring Power of Attorney or Lasting Power of Attorney now?

It is always sensible to ensure that all your financial and personal interests are in good order. However, and needless to say, it is now even more important that such legal documentation is up to date and reflects your current status and future wishes.

Whether you have an Enduring Power or Attorney, a Lasting Power of Attorney, or both – we have prepared a list of frequently asked questions to help ensure that everything you need is up to date.

I have an Enduring Power of Attorney (EPA); do I need to replace it with a Lasting Power of Attorney (LPA)?

An EPA validly created before 1 October 2007 is still effective. After that date, you can only make a Lasting Power of Attorney instead. We recommend that you review your EPA and, if you have any concerns about it being valid or out of date, then you should consider making a new Lasting Power of Attorney. Remember, an EPA does not cover health and welfare decisions so if you want to ensure this is taken care of you will need to make a new Health and Welfare LPA.

Do I need to register my EPA?

LPAs need to be registered before they can be used but this is not the case with an EPA. If you have mental capacity, your attorneys can act under an EPA under your instructions. Appointed attorneys have a duty to register an EPA if you are becoming, or have become, mentally incapable of managing your own financial affairs.

One of my attorneys has changed address; do I need to update my EPA or LPA?

It is not possible to amend an EPA or LPA once signed. Any changes would require a new document. However a change of address does not require an updated document. We would recommend that you send a note, signed by you, with the new details, to whoever has prepared your EPA or LPA – normally this is a law firm. Your letter should be placed with your EPA or LPA as this will assist in the future if your attorneys have any questions.

One of my attorneys has died; do I need a new Power of Attorney?

This depends on how your attorneys are appointed. The different ways your attorneys can be appointed are:

Jointly and severally

Your attorneys can make decisions on your behalf on their own or together. Any action taken by any attorney alone is as valid as if they were the only attorney. If your attorneys are appointed jointly and severally, your remaining attorney/s can continue acting for you.

Jointly

Your attorneys must always make all decisions together. They must agree unanimously and they must all sign any relevant documents. If your attorneys are appointed jointly and one of your attorneys cannot act (for example, if they were to die), your power of attorney will no longer be valid unless you appointed replacement attorneys.

Jointly for some decisions and jointly and severally for other decisions

Your attorneys must make certain decisions together and agree them unanimously but they can make other decisions individually. If your attorneys are appointed jointly for some decisions and jointly and severally for other decisions and one attorney can no longer act or dies, your remaining attorneys won’t be able to make any of the joint decisions unless you have appointed replacement attorneys.

If you want to add, remove or change any of your attorneys, you will need to prepare a new Lasting Power of Attorney.

I am going into hospital; will my attorneys be able to make decisions for me if I am not able to?

An EPA only gives your attorneys authority to make property and financial decisions on your behalf. Likewise, if you only have an LPA for property and financial affairs, then this does not cover health and welfare decision making. If you would also like your attorneys to have legal authority to make health and welfare decisions on your behalf, then you will need to make a Lasting Power of Attorney for Health and Welfare.

I have a Do Not Resuscitate (DNR) form completed with my GP; do I still need a Health and Welfare LPA?

A Health and Welfare LPA includes a section about life sustaining treatment decisions which gives wider authority than the DNR form. Life sustaining treatment means care, surgery, medicine or other help from doctors that is needed to keep you alive, for example:

  • A serious operation, such as a heart bypass or organ transplant
  • Cancer treatment
  • Artificial nutrition or hydration (food or water given other than by mouth)

Under the Health and Welfare LPA you can decide whether you wish your attorneys to have authority to give or refuse consent to life sustaining treatment on your behalf if you are not able to.

I have a Living Will (Advanced Decision); do I still need a Health and Welfare LPA?

A Lasting Power of Attorney for Health and Welfare includes a section about life sustaining treatment decisions. This may include situations that are not covered by your Advanced Decision. The Health and Welfare LPA also gives wider decision making power than just life sustaining treatment, such as your general welfare including your diet, where you live, care you receive and who you see. It is possible to have an Advanced Decision and a Health and Welfare LPA in place but the relationship between the two needs to be considered carefully.

I no longer see any of my attorneys; do I need to change my EPA or LPA?

It is essential that your attorneys are people you trust as they have wide ranging powers under the EPA/LPA. If you no longer see your attorneys simply due to their location but you are happy for them to continue as your attorneys, then this is not necessarily problematic. It might be more practical to have attorneys who live locally but this is not always possible. If, however, you have any concerns about your attorneys or wish to change your EPA/LPA for any other reason, then you should consider seeking professional legal advice.

I want my next of kin to make medical decisions for me; do I still need a Health and Welfare LPA?

Most people assume that in hospital your next of kin always gets the final say in treatment decisions if you cannot make them for yourself. However, in a campaign by the Office of the Public Guardian to promote the importance and benefits of LPAs, they noted that this is a misconception, despite the fact 72% of people think it is true. The way to ensure somebody has legal authority to make health and welfare decisions if you have lost capacity, is to appoint them as your attorney under a Lasting Power of Attorney for health and welfare.

In addition, the Health and Welfare LPA goes beyond medical decisions and gives your attorney power to make decisions about things like:

  • Your daily routine – for example, washing, dressing and eating
  • Moving into a care home

What happens if I do not have an LPA in place and I lose capacity?

You can only make an LPA while you still have mental capacity so it is critically important that you plan in advance and have these documents in place.

Unfortunately, many people lose mental capacity and do not have an LPA. This means you will no longer be able to decide who makes decisions for you and, often your family and friends will have to apply to the court to make decisions on your behalf. This process is both costly and very time-consuming but, more importantly, adds significant levels of stress during what is likely to already be a difficult and worrying time.

In some circumstances, people you don’t know could end up making crucial decisions for you instead.

Is it true that I may never need to use an LPA for Health and Welfare?

Absolutely, as an LPA for Health and Welfare can only be used by the attorneys if the donor has lost mental capacity. It is possible that you will be able to continue making your own decisions throughout your lifetime. Having an LPA is like having an insurance policy and it gives you peace of mind knowing that it is in place should it be needed in the future.

I have heard that an LPA needs to be registered before it is used; is that correct?

Yes. The process of creating the LPA has a number of steps built in to safeguard the person creating the LPA. Someone who is suitably qualified or who has known you for more than two years has to give a certificate confirming you have capacity and are not being forced into making the LPA (we would usually provide the certificate); and the LPA needs to be registered with the Office of the Public Guardian before it can be used. There is a minimum 4 week period from applying to register the LPA before the Office of the Public Guardian is allowed to register the LPA so we always advise registering the LPA once created so it can be used when necessary.

I need assistance with my financial affairs, is there anything my attorneys can do before my Lasting Power of Attorney is registered?

Your attorney does not have legal authority to make decisions under your Lasting Power of Attorney until it is registered. Provided you have not included any restrictions, as soon as it is registered, you can instruct your attorney to act for you. One option you may wish to consider is to appoint an attorney under a General Power of Attorney. This can be prepared fairly quickly and is effective as soon as it is signed in the presence of a witness. Your attorney can make decisions regarding your property and financial affairs such as signing a contract or selling your property on your behalf. The reason this should be considered as a temporary measure and not instead of a Lasting Power of Attorney is because the authority ends if you lose mental capacity whereas a Lasting Power of Attorney will continue.

How long will it take to prepare a Health and Welfare LPA?

Once an LPA is approved it needs to be registered with the Office of the Public Guardian before it becomes effective and this normally takes between 8 to 10 weeks. The time it takes to actually prepare an LPA does vary and depends on the availability of you and your attorney’s who are all required to sign the final document. Obviously, under the current Covid-19 social distancing guidelines, signing documentation can present some challenges but there are ways this can be done. Read our blog on Signing and witnessing a Will during Covid-19

Contact us

For more information about how our dedicated Private Client Team can help you with your Enduring Power of Attorney or Lasting Power of Attorney or for an informal chat about how we can help then contact Ellie Taylor, e. ellietaylor@rixandkay.co.uk t. 01273 766956

 

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