Frequently Asked Questions About Power Of Attorney
What is a Power of Attorney?
A Power of Attorney is a legal document which appoints someone you trust to be an ‘attorney’ who can make decisions on your behalf.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) goes further than an ordinary Power of Attorney as it continues (‘lasts’) even after you are no longer able to manage your own affairs. The incapacity may be permanent or temporary as a result of illness, accident or disability.
What decisions can an Attorney make?
There are two types of LPA which allow your attorneys to make decisions in relation to your:
- Health and Welfare – such as where you live, who visits you and the type of care you receive
- Property and Finances – will allow your attorney to run your bank and savings accounts, make decisions regarding investments and spend your money
Your attorney when exercising their powers must have regard to the Mental Capacity Act 2005, which states:
- They must assume you can make your own decisions unless it is established that you cannot
- Your attorney must help you to make as many of your own decisions as you can
- Your attorney must not treat you as unable to make decisions simply because you make an unwise decision
- Your attorney must make decisions and act in your best interests when you are unable to make the decision in question.
- Before making a decision your attorney must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom
When can an Attorney act?
Once your LPA has been registered with the Office of the Public Guardian, your attorneys may make decisions on your behalf. An LPA for Health and Welfare may only be used by your attorney in circumstances where you lack capacity. However an LPA for Property and Finances will allow your attorney to make decisions when you have mental capacity and when you lack capacity unless you choose to place a restriction on your attorney’s powers.
I have an Enduring Power of Attorney. Is this still valid?
Yes, although an Enduring Power of Attorney only relates to your financial affairs, so if you would like to empower your Attorney to make decisions regarding your Health and Welfare you will require an LPA for Health and Welfare.
What happens if I don’t have an LPA?
If you are unable to manage your own affairs and you do not have an LPA then an application will need to be made to the Court of Protection. The court may either choose to make the decision itself on your behalf or choose someone else, known as your ‘Deputy’, to make decisions for you. Where a Deputy is appointed by the court in relation to your financial affairs on an ongoing basis, the Deputy will be required to keep accounts, enter in to a security bond and report to the Office of the Public Guardian.
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