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Lasting power of attorney

Wendy Scarr B.A. (Hons) TEP
0113 320 5000
wills@winstonsolicitors.co.uk

Wendy Scarr is a STEP qualified solicitor, she is experienced at drafting complex wills, creating trusts and conducting probate work for high net worth individuals.  Read more about Wendy and the wills, trusts and probate team.

An overview

A Lasting Power of Attorney allows an adult with mental capacity ("the Donor") to choose someone to manage their affairs on their behalf ("the Attorney"), should the Donor become unable to do so at some point.

LPAs allow a Donor to nominate different Attorneys to assume responsibility for different decisions. For example, one Attorney may be responsible for finances and another Attorney responsible for decisions relating to the Donor's personal welfare.

Whatever the scope of their decision making responsibilities, Attorneys are under a duty to act in the Donor's best interests at all times.

In contrast with the old EPA regime, LPAs will only become valid once they are registered with the new Court of Protection. Once the LPA has been registered with the Court, your Attorney(s) will be able to act on your behalf in accordance with the terms of the LPA.

It is vital to give considerable consideration to whom you wish to nominate as your Attorney(s).

There are two types of LPAS: (1) Property and Affairs and (2) Personal Welfare.

Local Leeds accountants can help you with all your finances.

Property and affairs

Attorneys can be made responsible for general management of your financial affairs including the operation of a bank account and buying and selling property. The Attorney is not permitted to make gifts on your behalf (other than those usually made by you where an established pattern can be continued) and cannot make a Will on your behalf.

Personal welfare

Your Attorney can be given responsibility for important welfare decisions such as where you live and who cares for you. They may also give or refuse consent to the carrying out or continuation of medical treatment.

It should be noted that your Attorney will not have the right to demand certain medical treatment for you if medical professionals are not in accordance with their views.

The Mental Capacity Act 2005

Explaining the changes introduced by the The Mental Capacity Act 2005

The Mental Capacity Act 2005 came into effect on 1 October 2007. The Act introduced important changes which affect decision-making for both the healthy and the incapacitated.

The new Lasting Powers of Attorney replaced Enduring Powers of Attorney, though any Enduring Powers signed before 1 October 2007 remain effective.

The main aims behind the legislation are to provide recognition of the individual's right to autonomy and to provide further protection for the vulnerable.

Mental Capacity Act 2005 code of practice

The Mental Capacity Act 2005 is supported by a Code of Practice, which outline five key principles:

  1. Presumption of Capacity – with the introduction of a new functional test for determining capacity
  2. Individuals should be supported to make their own decisions as far as possible
  3. Decision Specific Capacity - we can all make unwise or eccentric decisions without being considered mentally incapacitated.
  4. Best Interests – all decisions must be made with the best interests of the person making the decision.
  5. Decisions should be the least interventionist/restrictive to the individual as possible.

People under a duty to have regard to the new Code of Practice include:

  • Professionals (such as doctors, nurses and social workers or anyone getting paid for the work they do)
  • Attorneys
  • A Court Deputy
  • Family and unprofessional carers should also be encouraged to familiarise themselves with the Code.

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Winston Solicitors LLP is a firm of Leeds based lawyers who can assist you with wills, trusts and probate, along with a wide range of other legal services.

 

Further information

Speak to our LPA team, in confidence on 0113 320 5000.

Or if you are calling from outside the area, use lo-call 0845 890 2277.

Or email us directly on: wills@winstonsolicitors.co.uk

 

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