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 EPAs
Before the introduction of Lasting Powers of Attorney (LPA)s in October 2007, individuals could create an Enduring Power of Attorney (EPA). This legal document enabled an individual (the donor) to appoint attorneys to manage their property and financial affairs, but it did not grant them the authority to make decisions regarding the donor’s health and welfare.
EPAs , once signed were valid documents and could be used immediately, without the requirement to register the EPA with the court. However, in situations where the attorney believes that the donor has, or is beginning to lose capacity, the EPA must be registered with the Office of the Public Guardian. The attorneys only have limited powers whilst they are waiting for the court to deal with the registration process, which could take months.
Existing EPAs can still be used, but can also be revoked and replaced with LPAs where donors want more flexibility in how their attorneys are appointed and future proof the appointment by appointing replacement attorneys.
General Power of Attorney
A general power of attorney does not need to be registered with the Office of the Public Guardian before it can be used, unlike lasting powers of attorney (LPAs). However, it can only be used by your attorneys if you have mental capacity at the point of the transaction they are undertaking on your behalf.
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