BackLatest News and Articles - October 2009
Lasting powers of attorney update
A Lasting Power of Attorney (LPA) is considered to be the second most important document after a Will.
A Will is a legal document that ensures that your wishes concerning your Estate are administered and distributed in accordance with your instructions after your death.
But what about whilst you are alive? What happens to you if during your lifetime you are unable to deal with your own affairs, perhaps through mental capacity or even simply if you are in hospital for a long period of time? Most people are concerned about making arrangements in the event of their deaths, but not many people are aware that they also need to consider what might happen if they are no longer able to manage their own affairs in their lifetime.
An LPA is an insurance policy to ensure that the people that you want to deal with your affairs are appointed in the event that this has to come into force.
Before the 1 October 2007, this was achieved by entering into an Enduring Power of Attorney (EPA). An EPA was a simple four page document signed by the Donor and the appointed Attorneys, and was effective straight away. It allowed Attorneys to act on behalf of the Donor, unless any restrictions were in place, and to manage their affairs whilst they had the mental capacity to do so themselves. In the event of the Donor losing mental capacity the Attorney had a duty to register the EPA with the Court of Protection, then allowing them to continue to act under the EPA with the Court of Protection’s assistance.
After the implementation of the Mental Capacity Act 2005 this simple procedure has dramatically changed and in order to appoint somebody as your Attorney you will now need to complete an LPA, which is a 25 page document as opposed to the simple 4 page one. This means that EPAs can no longer be made however, this does not effect the validity of those EPAs made before 1 October 2007.
Lasting Powers of Attorney
There are two different types of LPAs, namely Property and Affairs and Personal Welfare. You can make one or the other or both.
- Property and Affairs - this will allow your Attorneys to make decisions about your finances, buying or selling properties and operating a bank account.
- Personal Welfare – this will allow your Attorneys to make decisions about medical treatment, health issues and even where a person should live.
You can appoint one or more Attorney to act together or together and independently. Your Attorneys can also be different for each type of LPA you choose.
A huge difference from the old style EPA to the LPA is that a certificate provider, who is an independent third party, must certify that the Donor has capacity to enter into the LPA, is not under any undue influence, the Donor has the knowledge of the effect and scope of the document and that there is no reason why it should not be entered into. This must be done by two certificate providers who must fulfil a certain criteria, if the Donor chooses not to notify anybody else about the intended appointment of the Attorneys.
The complexity of the document does not end there. The LPA must be registered with the Office of the Public Guardian (OPG) before the Attorneys can make any decisions. The registration period takes some 6 weeks and is registered as a matter of public record and not because the Donor has lost capacity as was the case when registering the old EPA.
The OPG have also published a Code of Practice to provide a guideline and assistance for the Attorney and they are obliged to follow this code.
Due to the complexity of the issue it is advised that you seek professional advice when entering into an LPA. Not only to ensure that the LPA is completed and registered correctly but also to ensure that the stringent guidelines put in place are followed correctly by the Attorney. If you wish to discuss this further then please contact Niamh Minihane.