Duties when acting as an Attorney
As an attorney, you do not need to have legal experience. You simply need to be able to make decisions in the best interests of the person who has appointed you as LPA, ‘the donor’.
Where possible, you should help the donor to make decisions.
Within the LPA documentation there may be instructions from the donor on what to do in various circumstances. You are expected to respect these wishes.
When difficult decisions arise, you cannot ask someone else to make the decision. You can, however, seek advice from social services, the Court of Protection, or the Office of the Public Guardian, where you require guidance on particularly serious decisions.
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What is a lasting power of attorney?
A lasting power of attorney (LPA) is a legal document which allows a trusted party to make key decisions on healthcare and finances if you develop an illness which leaves you mentally incapable of making such decisions.
Arranging an LPA allows you to focus on providing the best possible care for relatives and is vital for people suffering from degenerative illnesses such as dementia. Failing to arrange an LPA means somebody would have to apply to the Court of Protection for an Order to be able to carry out even the most basic of tasks, such as accessing funds to help pay for a car.
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What is the role of a lasting power of attorney?
The role of lasting power of attorney involved making decisions that are in the best interest of the donor. Although the role is circumstantial, this can often involve making difficult decisions, including issues with healthcare or finances.
Financial lasting power of attorney
Lasting power of attorney for financial decisions allows the person appointed to make financial decisions for the person in need. This can be used while they still have the mental capacity to make decisions but don’t feel confident in making important financial decisions. Some of the financial decisions the person with lasting power of attorney can make include:
- Purchase or sale of a property.
- Paying bills.
- Investment decisions.
The attorney will be given the responsibility to make these decisions based on the best interests of the donor’s long-term future and will speak to the donor to discuss their preferences and make decisions based on this. The attorney should also keep accounts, ensuring all money spent is recorded and accounted for.
LPA for health and care decisions
The attorney takes responsibility for this once the person lacks the mental capacity to make their own decisions. It will allow fast, decisive action to ensure you or your loved one receives the best care possible. Some of the decisions they can make in this situation include:
- The medical care received.
- Living arrangements.
- Social activities.
The donor can instruct their attorney on their preferences for specific situations. If these situations occur, the attorney will then make their decisions based on the donor’s wishes.
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How do I set up power of attorney?
In order to set up a lasting power of attorney, you should first choose who you wish to have this responsibility. Although some choose to assign a friend or family member to have power of attorney, many choose to have a solicitor represent them, owing to their vast experience in dealing with this complex area of law and the decisions it entails.
Following this, you should contact your chosen solicitor, who will help you fill out the relevant forms and register it. The registration process takes approximately four to six weeks, during which time the LPA cannot be used.
LPA is also only valid if set up while you still have the mental capacity to set it up and have not been pressured into doing so.
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What’s the difference between a power of attorney and lasting power of attorney?
As stated in the Mental Health Capacity Act 2007, an LPA is only effective when you lose mental capacity, in which case your attorney will assume the role of decision-maker. This role includes making decisions on your finances, healthcare and living arrangements.
Assigning power of attorney to an individual will allow them to act within the powers given to you thereunder. This is only applicable when an individual has full mental capacity and has decided to allow a donor to make decisions on their behalf. In this instance, you will be able to select the mode “jointly and severally”, where you can either make joint decisions or allow a donor to assume full control. If you lose full mental capacity or die, the power of attorney will be invalid.
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Can lasting power of attorney be revoked?
If you choose to assign Lasting Power of Attorney to an individual, this can be revoked at any time. In order to do this, you must sign the Deed and inform the Attorney that their power to act has been revoked. In addition to this, the Attorney must return the power of attorney to you and confirm that power has been cancelled.
If you have registered your LPA with the Office of the Public Guardian, then you must also send a copy of the signed deed in order to be removed from the register.
More information on Power of Attorney can be found in our comprehensive guide.
Submitting Lasting Power of Attorney without sufficient mental capacity
Appointing LPA when you have full mental capacity is simpler when sufficient mental capacity is already lacking, whether due to illness or injury.
Many clients ask our solicitors for our support when a member of their family lacks sufficient mental capacity to submit an LPA due to illness, or any other reason. In these circumstances, we can also advise on submitting a formal application to the Court of Protection. We are particularly well versed in this area because our head of department Chris Partington also sits on the Court of Protection panel of deputies.
Commitment to exceptional client service
At Slater Heelis, we pride ourselves on building open and honest relationships with our clients. Our expert power of attorney solicitors are happy to arrange an appointment at one of our high street branches, or we can also arrange a home visit where required.
Several members of the partners within Slater Heelis’ Private Client department are also active members of Solicitors for the Elderly (SFE) and Society of Trust and Estate Practitioners (STEP). These national bodies promote a stronger regulatory framework and code of conduct for solicitors that specialise in trust, estate and inheritance planning.