September 22, 2010 Leave a comment
The Lasting Power of Lawyer was introduced by The Mental Capacity Act 2005 and came into effect on the 1st October 2007. You may make two kinds of LPA – the House and affairs LPA and the Welfare LPA. Option of Attorney
The person making the LPA (the Donor) should appoint an Lawyer they trust and in whom they have complete confidence. Role of Lawyer
Under a Welfare LPA the Attorney is likely to be given power to consent or refuse specific kinds of healthcare, including medical treatment and may even be in a position to consent to or refuse life sustaining treatment on behalf of the individual that has made the LPA. The Lawyer may also be in a position to decide whether the Donor remains in his own home or moves into residential or nursing care and also more day to day decisions such as the Donor’s diet, dress or every day routine. LPA’s can be restricted or contain conditions limiting the Attorney’s authority. The Donor can also, if he wishes, include guidance for the Lawyer in the LPA. This guidance is not legally binding but could be invaluable to the Lawyer.
Not only must LPA’s be signed by the Donor and Attorneys and witnessed, a Certificates should also be given by a 3rd party, the “Certificate Provider”. A Certificates Supplier is an independent person chosen by the Donor to complete a Certificates contained in the LPA to confirm that in his or her opinion the Donor:-
· Understands the purpose and content of the LPA;
· Understands the extent of the powers he is giving to the Lawyer;
· Is not becoming pressurised, tricked or placed under duress by a third party to make the LPA; and
· That there is nothing else that would prevent the LPA being created.
The Certificate is vital and without it the LPA is invalid and cannot be registered. a Solicitor, Barrister, Doctor or Social Worker.
Registering the LPA
An LPA, regardless of whether it is a Property and Affairs LPA or a Welfare LPA should be registered with the Office of the Public Guardian (OPG) prior to it can be used. The registration fee is £150 and the registration process is most likely to take between 6 and 8 weeks. Once registered, a Property and Affairs LPA can be used instantly but a Welfare LPA can only be used once it is registered and the Donor has lost his mental capacity to make choices. Those notified will have an opportunity to object to registration if they have concerns for example concerning the integrity of the Lawyer. A registered LPA will be added to the OPG database and searches can be created by third parties to see whether an LPA is in existence.
Revoking an LPA
An LPA can be revoked by the Donor at any time provided he has psychological capacity. The Attorney can also disclaim the appointment. These are:-
If two or more Attorneys are appointed, the appointment of the surviving or non bankrupt Lawyer will proceed;
However, a decision to give somebody authority to handle your financial affairs is not one that should be entered into lightly.