29/04/2009

Lasting Powers of Attorney

There are two different types of Lasting Powers of Attorney, one which allows you to appoint Attorneys to take decisions concerning your personal welfare and one which enables Attorneys to be appointed to take decisions concerning your property and financial affairs.

Neither type of Lasting Power of Attorney may be used until it has been registered at the Office of the Public Guardian, because of this we would advise that the Lasting Power(s) of Attorney be registered as soon as you have made them.

Once registered, with your consent, your chosen Attorneys may act under a Property and Affairs Lasting Power of Attorney. For example, if you were bedridden at home or ill in hospital and needed your attorneys to withdraw money from your bank account or to pay bills for you, you could authorise them to do so. However, your Attorneys cannot and must not act under a Personal Welfare Lasting Power of Attorney until you lose (or begin to lose) mental capacity.

In each of these documents you may appoint anyone you choose to act as your Attorney. You can appoint as many or as few Attorneys as you want (between 1 and 5) and if you chose to appoint more than one, you can choose in which way they are to act. The Attorneys can be appointed to act “together”, which means that all of them have to take decisions and act together for you, or “together and independently”, meaning that they can take decisions and act together and separately for you. A further option available to you is to specify that your Attorneys should act “together” in respect of some matters and “together and independently” in respect of others. If you choose this latter option, you must then specify on which matters the Attorneys are to act “together” and on which they are to act “together and independently”.

You can also choose to appoint replacement Attorneys to act if the appointment of one or any of your Attorneys fails or if one of your Attorneys is appointed but then cannot continue to act.

The Personal Welfare Lasting Power of Attorney gives your Attorneys the authority to (once you have lost the capacity to take decisions for yourself) make any decisions about your personal welfare, subject to any restrictions or conditions you place on them in the Lasting Power of Attorney. If you place restrictions or conditions in your Lasting Power of Attorney, these must be followed by your Attorneys. You can restrict your Attorneys in whatever manner you see fit, but you should ensure that those you include will work in practice. It is also possible to give your Attorneys guidance in your Lasting Power of Attorney. Any guidance given is for your Attorneys’ information only, but should be considered by them when they take decisions for you. Guidance and restrictions can also be placed in a Property and Affairs Lasting Power of Attorney.

The law requires that when you make a Personal Welfare Lasting Power of Attorney you must choose whether you want your Attorneys to have the authority to give or refuse consent to life sustaining treatment on your behalf. You may wish to discuss this with your doctor and it is advisable that you discuss this with those individuals you choose to appoint as your Attorneys.

The Lasting Power of Attorney also allows you to choose whether or not you wish to pay your Attorneys a fee. You do not have to pay them a fee or you can choose to pay different Attorneys different amounts.

Finally, you can choose up to five people who are to be notified when an application to register your Lasting Power of Attorney is made. You can choose anyone you want and this is an important safeguard because it gives the people so chosen the right to object to the registration of the Lasting Power of Attorney. If you chose people to be notified, you should let them know that you have chosen them.

If you would like to discuss any of the issues above please contact Greg Dixon on 0113 227 0202 or email greg.dixon@gordonsllp.com