Lasting Powers of Attorney
These came in effect on the 1st October 2007. They are not valid until registered with the Office of the Public Guardian. This can take 3 months or longer Prior to that date you could execute an Enduring Power of Attorney (EPA)
An EPA appointed attorneys to deal with your financial affairs only. An attorney under an EPA cannot make decisions concerning a persons personal welfare. An EPA did not need to be registered at inception to be valid. EPA’s granted before 1st October 2007 remain valid.
Is your EPA valid?
A number of issues may exist which could affect the validity of your EPA:
it may have been executed after the 1st October 2007. In which event it’s invalid.
the form may not have been properly completed. As they didn’t need to be registered an error can go undetected. If the attorney’s have not signed them, they are invalid. They may also contain conditions which are unworkable. Where joint attorneys have been appointed and one has died the EPA may no longer be valid.
where spouses have only appointed each other a time will arrive where the surviving spouse has no attorney.
the named attorney may have died or no longer be able or willing to act.
It is important to check your EPA is valid and that its longevity is not in question. You may not have the mental capacity to grant a new LPA at a later date.
Health and Welfare Powers of Attorney (‘Welfare LPA’)
The Act simply states that a person (‘the donor’) can appoint attorneys to make general or specific decisions about the donors personal welfare. The authority granted can be very wide. If it is to be limited, the power of attorney must specifically say so. Amongst the decisions that can be made are:
deciding where your should live and with whom
deciding what care, medical treatment or procedures or therapies you should or should not receive. This will only include life sustaining treatment if you specifically say so.
making decisions about your dress, diet or personal appearance.
choosing your social and cultural activities.
making decisions over any work, education or training you receive.
deciding where you go on holiday.
controlling who you may meet.
deciding who has access to your personal papers, correspondence, medical records and other personal information.
agreeing an end of life care plan on your behalf.
Life sustaining treatment
This is any treatment that a doctor consider necessary to keep you alive. The treatment can range from cardio pulmonary resuscitation to a simple course of antibiotics.
GP’s and other medical practitioners will often be reluctant to discuss a parents medical condition for fear of breaching patient confidentiality. Similarly hospital staff may refuse to give a patient treatment when they are refusing it. A Welfare LPA can remove many of these problems.
Lack of mental capacity
A Welfare LPA can only be exercised where the donor lacks the mental capacity to make a particular decision. Matters should be considered on a case by cases basis. The provisions of the Act (particularly S.1) and the Code must be followed.
Financial Powers of Attorney
These allow your attorney to make all financial decisions on your behalf subject to any conditions or restrictions you impose. This can include the sale of your house. Unlike Welfare LPA the power is valid while the donor still has mental capacity.