Power of Attorney Lawyer Bristol
Meade King's Tax and Estate Planning Team has extensive knowledge of Power of Attorney issues and is always available to answer any queries you may have.
General Power of Attorney
A General Power of Attorney (also known as an Ordinary Power of Attorney) is often created for a limited period where the person creating that Power (the donor) is going to be unable to act for some reason (perhaps going abroad) and wishes his/her Attorney to have authority to act on his or her behalf. The power granted can be general or limited to a specific matter.
The General Power of Attorney will usually come to an end either at a specified time or after 12 months, which is the maximum time a trustee can delegate his/her powers. There is no requirement for a General Power of Attorney to be registered. A General Power of Attorney will fail if the donor loses mental capacity.
Enduring Power of Attorney
You can no longer create an Enduring Power of Attorney. However, any Enduring Power of Attorney which was made before 1 October 2007 can still be used. Your Attorney(s) is under an obligation to register that Enduring Power of Attorney with the Office of the Public Guardian if s/he has reason to believe that you are, or becoming, mentally incapable.
You can revoke an unregistered EPA at any time whilst you have the mental capacity to do so. Once the Enduring Power of Attorney has registered it cannot be revoked save with the consent of the Court of Protection.
The best way to revoke an unregistered Enduring Power of Attorney is to sign a formal document (Deed of Revocation). We can provide you with legal advice regarding the preparation of such a deed.
Lasting Power of Attorney
The Mental Capacity Act 2005 provided the framework to empower/protect people who may lack capacity to make decisions for themselves.
The key principles of the Mental Capacity Act 2005 are:
• Every adult has the right to make his/her own decisions and is assumed to have capacity to make those decisions unless it is proved otherwise.
• Each individual has the right to be given all practical help before anyone treats them as being mentally incapable.
• Just because an individual makes what might be perceived to be an imprudent decision, they should not be regarded as lacking capacity to make that decision.
• Any decision made on behalf of a person who is mentally incapable must be done in the best interests of that person.
• Anything done on behalf of a person who lacks capacity should be the least restrictive of their rights and freedoms.
• Lasting Powers of Attorney allow you to choose one or more Attorneys to make decisions on your behalf in respect of either or both of your financial affairs and/or your health and welfare.
• Your Attorneys only have power to act under your Lasting Power of Attorney once that Lasting Power of Attorney has been registered with the Court of Protection.
Property and Financial Affairs Lasting Powers of Attorney
Some of the examples of decisions which your Attorneys can make under an unrestricted Property and Affairs Lasting Power of Attorney are:
• Buying/selling a property.
• Opening, closing or operating on behalf of the donor a bank, building society or other account.
• Claiming/receiving and using on behalf of the donor all benefits, pensions, allowances and rebates.
• Dealing with the donor's tax affairs.
• Paying the donor's mortgage, rent, household expenses and care fees.
• Ensuring, maintaining and repairing the donor's property.
• Paying any private medical insurance premiums and residential/nursing home fees.
• Applying for any entitlement to funding for NHS care, social care, domiciliary care.
Health and Welfare Lasting Power of Attorney
This Lasting Power of Attorney enables you to choose an Attorney(s) to make decisions on your behalf regarding your healthcare and personal welfare. Your Attorneys can only make these decisions when you lack the capacity to make them yourself (for example if you were unconscious or had a disease which a affected your cognative abilities, such as dementia).
Some of the examples of decisions which your Attorneys can make under an unrestricted Health and Welfare LPA are:
• Where the donor should live and who they should live with.
• The donor's day to day care, including diet and dress.
• Consent to, or refusal of, medical treatment and examinations.
• Assessments for and the provision of community care services.
• Rights of access to personal information, such as health and social care records.
• The giving or refusing consent to particular types of medical treatment and healthcare.
If you wish your Attorneys to have power to make decisions about life sustaining treatment, this should be expressed in an Lasting Power of Attorney and you should discuss this with us if you wish to set out the parameters for such a power.
Who I should appoint as an Attorney
It is important that you appoint as your Attorney someone who you know and trust to act in your best interest. Attorneys must be over the age of 18 and have full mental capacity themselves. You can appoint a member of your family or a third party, such as your solicitor/accountant or a trusted friend to act on your behalf. More than one Attorney can act and if you choose to appoint more than one then your Attorneys can act either jointly or jointly and severally.
The Attorneys must act in accordance with the statutory provisions laid out in the Mental Capacity Act 2005 and the Code of Practice and must sign a certificate in the power itself stating that they have read and understood the Code and agree to act in accordance with its terms.
The Lasting Power of Attorney needs to be signed by you and then by the Attorneys. It must then be certified by a qualified person confirming that the donor of the power understands the nature and scopes of the Lasting Power of Attorney and entered into it of their free will.
As mentioned above, before the Attorneys can act under either type of Lasting Power of Attorney, it must be registered with the Office of the Public Guardian.
Other Helpful Links
If you would like any further information then please do not hesitate to contact:
Vanessa Eyre or
In the event that Vanessa or Samantha are not available then please ask to speak to a member of the Personal Estate Planning Team.
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