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LASTING POWERS OF ATTORNEY
A power of attorney is a legal document where a person gives to another person or persons (the attorney) authority to make certain decisions on his or her behalf. From the 1st October 2007, a new type of power of attorney, called a 'lasting power of attorney' (LPA) is being introduced.
Types of LPAs
There are two types of LPAs:
· A ‘property and affairs’ LPA, which gives authority for the attorney to deal with your property and finances, as you specify; and
· A ‘welfare’ LPA, which allows your attorney to make welfare and health care decisions on your behalf, when you lack mental capacity to do so yourself. This can also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
Your Attorney
As with any power of attorney, it is an important document and you should take care who you appoint. They should be trustworthy and have appropriate skills to make the proposed decisions. If you appoint more than one attorney, you can appoint them to always act together (jointly) or together or separately (jointly and severally).
You could even appoint them to act jointly for some things and jointly and severally for others, although this may cause problems when using the power and so it should only be done with advice.
You may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.
When the Attorney can act?
The attorney will only be able to act when the LPA has been signed by you and your attorney, certified by a person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of Public Guardian before it can be used.
The financial LPA can be used both when you have capacity to act as well as if you lack mental capacity to make a financial decision. The welfare power can only be used if you lack mental capacity.
Existing Enduring Powers of Attorney
Any enduring power validly made before 1st October 2007, will continue to be valid for use but only in respect of your property and affairs. If you wish to give authority over your health or welfare you will need to make a new style welfare LPA.
What happens if you have not made a LPA or EPA?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming.
Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes you can give a person(s) authority to make those decisions on your behalf by making a welfare LPA.
This information gives basic information about lasting powers of attorney. It is not to be treated as a substitute for getting full and specific advice.
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We question whether this is really what the clients want?
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A new Bill is also being considered by the House of Lords that would give bailiffs the power to break into property to collect debts and make it a criminal offence to obstruct the bailiff. Civil rights organisations see these provisions as a step too far and are calling on the Lords to amend the Bill to prevent such measures.
Age discrimination is the latest issue for employers and employees to consider –
The Employment Equality (Age) Regulations 2006 came into force on 1st October 2006 with the following effect-
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Both direct and indirect discrimination by employers on the grounds of age will be prohibited in the areas of recruitment, promotion and training;
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Only one compulsory retirement age is allowed - 65;
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The right to claim unfair dismissal and redundancy will be extended to employees over 65;
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Employers have an obligation to give at least six months notice to employees in advance of their retirement date;
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Employers must consider any request by an employee to continue working after age 65;
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