Whilst people know that they should make a will, whatever their personal circumstances or wealth may be, far fewer consider what would happen if they could no longer manage their own affairs during their lifetime. This is where powers of attorney can help.
At Sydney Mitchell, we offer expert guidance to ensure your attorneyship needs are met taking into account your individual circumstances, providing peace of mind that your affairs are in safe hands.
How can we help?
What is a lasting power of attorney?
A lasting power of attorney (LPA) is a legal document that allows an individual to appoint someone (or more than one) person they know and trust to make financial and health decisions on their behalf should the individual lose capacity to make those decisions themselves.
Legislation allowing LPAs to be created came into effect on 1 October 2007. This meant no new enduring powers of attorney (EPAs) could be made, although existing EPAs remain valid.
What is the difference between an EPA and a LPA?
Under an EPA, the person making it (the donor) would appoint one or more people – known as the attorney(s) to act on their behalf in respect of their property and financial affairs only. An EPA does not allow attorneys to make decisions regarding the persons health and welfare.
There are two types of LPAs.
The first is called a Property and Financial Affairs LPA and allows the attorney to deal with and make decisions about the donor’s financial matters such as their property, cash, investments and pensions. This type of LPA can be used when the donor still has capacity to make some or all financial decisions, for example where the donor is physically incapacitated, making trips to the bank difficult. It also allows the attorney to make property and financial decisions on behalf of the donor where they lack capacity to make specific decisions themselves, subject to any restrictions in the document.
The second type of LPA is called a Health and Welfare LPA and allows the attorney to make decisions in relation to the persons health and welfare for example where you live, with whom and medical treatment. However this LPA can only be used if the person does not have mental capacity to make a specific decision.
Existing enduring powers of attorney (EPAs)
Any EPA validly made before 1 October 2007, can still be used in respect of the donor’s property and financial affairs. No new EPAs could be made after that date. EPAs can only provide authority in respect of property and financial affairs. If you want to give authority for someone to make decisions regarding your health and welfare, you will need to make a health and welfare LPA which can operate alongside an EPA, dealing with property and financial matters.
If the person who has made the EPA has lost or is begining to lose mental capacity to deal with their financial affairs, the EPA must be registered with the Office of the Public Guardian and the attorney has limited powers during the period until registration.
How do I set up a LPA?
Your need for an LPA, who you might want to appoint as attorneys and your objectives are best discussed with an experienced legal advisor. Sydney Mitchell’s Private Client team can take you through all the legal and other formalities, and advise you in more detail, the advantages of having a LPA.
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