Is it time to re examine your power of attorney arrangements?

Date:

Threthowans – May 2021

Mental incapacity can affect any one of us at any time, no matter our age. It could occur through illness, accident, or old age. It could be temporary, or it might be permanent.
Everyone should have the opportunity to elect whom they want to look after their affairs if this happens to them, by nominating a power of attorney.
Essentially, there are three main types of power of attorney:

  • General power of attorney
  • Enduring power of attorney
  • Lasting power of attorney

This election can now be made by preparing and registering a Lasting power of attorney. However, you may still hold an Enduring power of attorney.
Adam Scott looks at whether now would be a sensible time to review your current enduring
power of attorney and, potentially, change it.

General power of attorney
These can only be used whilst the person who has made the power, the donor, retains mental capacity. General powers of attorney become invalid as soon as the donor loses mental capacity. General powers of attorney are useful for short
term specific transactions, such as property transactions, where the donor is overseas.

Enduring power of attorney
It has not been possible to create a new enduring power of attorney (EPA) since 30 September 2007. However,
EPAs executed correctly before this date remain valid.
Unlike an LPA, EPAs only provide the attorneys the authority to deal with property and financial matters, not health and welfare.
EPAs can be used as soon as they are validly executed. They do not have to be registered with the Office of the Public Guardian (OPG) before they are used.
However, if the attorneys believe that the donor is losing or has lost mental capacity then there is an obligation on the attorneys to register the EPA with the OPG.

Lasting power of attorney
Donors have been able to create a lasting power of attorney (LPA)
since 1 October 2007. LPAs come in two parts; property and financial affairs, which provide the attorneys with the same powers as those under an EPA, and donors can also appoint health and welfare attorneys, which was not possible under an EPA. The health and welfare part of the LPA also enables the donor to elect whether they want their chosen attorneys to be able to make decisions regarding life sustaining treatment or not.
LPAs enable the donor to provide wishes and guidance to their attorneys and they can also restrict the attorneys’ powers if they wish.
Unlike an EPA, before an LPA can be used, it must be registered with the OPG first.

What advantages are there?
If you decide to switch from an EPA to an LPA, there are a number of benefits:
Replacement attorneys can be appointed
The range of decisions that the donor can delegate to attorneys are extended
When acting under an LPA attorneys must have regard to the principle that the person must be able to make decisions for themselves wherever possible and therefore consider whether or not the donor can make a particular decision before making it for them.

Applying for an LPA
Although you can make your LPA
yourself, directly with the Office of the Public Guardian, by doing so you may be missing out on important advice that a professional can provide. Unfortunately, it is often the case that when LPAs go wrong, it is too late to change them, resulting in costly applications to the Court to rectify matters. It is much better
to get it right at the outset.

If you have any queries regarding LPAs or would like more information, you can contact Adam Scott on
adam.scott@trethowans.com
or call 01202 338570.

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