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Lasting Power of Attorney (UK Law)
The Lasting Power of Attorney was introduced by The Mental Capacity Act 2005 and came into effect on the 1st of October 2007. The law replaces Enduring Power of Attorney although the EPA's created prior to 1st Oct 2007 will continue for validity. You can make two types of LPA that are one called the Property and affairs LPA and the Welfare LPA. Like the name suggests, the Property and Affairs LPA deals with financial issues, while the Welfare LPA covers personal and healthcare decisions. choice of Attorney The person who makes an LPA (the donor) should appoint an Attorney they trust, and with whom they have complete confidence. The Attorney must be over 18 and must not be an un-discharged or interim bankrupt person. A number of Attorneys may be appointed together, independently or together in certain cases but independently in the case of other matters. If the LPA is silent on how Attorneys should act, they are expected to work together. Under LPA's it is possible for the person who signed the LPA to choose a replacement Attorney. Role of Attorney An Attorney's role to make every decision (subject to any restrictions or restrictions stipulated within the LPA) that the Donor would have taken himself, and in reaching these decisions the Attorney must be in compliance with The Mental Capacity Act 2005 and the Code of Practice. In A Property and Affairs LPA the Attorney is typically able to pay bills and expenses, collect income and benefits as well as manage Bank and Building Society Accounts, buy and sell property, complete and submit Tax Returns and make gifts within the limits set by law. With an Welfare LPA the Attorney is likely to be given power to refuse or consent to certain types of healthcare, including medical treatment . In addition, the Attorney may be able consent to or decline life-sustaining treatment on behalf of the individual who has signed the LPA. Visit:- The Attorney might also be able to decide whether the Donor stays at home or moves into a residential or nursing home, as well as other day-to-day decisions such as the diet, clothing or routine. LPA's may be limited or contain limitations on the authority of the Attorney. The Donor can also should, if he wants to, include guidance to the Attorney in the LPA. This advice is not legally binding but could be beneficial to the Attorney. The Provider of Certificates Not only must LPAs be signed by the Donor and Attorneys, and be witnessed, but a Certificate also needs to be issued by a third party who is known as that is, the "Certificate Provider". A Certificate Provider is an unrelated person that is selected by the Donor to sign a Certificate included within the LPA to prove that in their judgment the Donor * Knows the intent and the content of the LPA; * Understands the extent of the authority he's conferring to the Attorney * Is not being pressurised or manipulated into pressure by a third-party to sign the LPA; and * There is nothing that could hinder the LPA being created. The certificate is critical and without it the LPA is ineffective and can't be registered. The Certificate Provider can either be someone who knows the Donor personally and had the privilege of doing so for at minimum two years, or someone possessing the necessary professional skills and expertise to certify the LPA eg. Barrister, Solicitor Social Worker or Doctor. Registration of the LPA An LPA, whether it is an Property and Affairs LPA or a Welfare LPA must be registered with the Office of the Public Guardian (OPG) before it can be utilized. The cost of registration amounts to PS150 and the process of registration is expected to take between 6-8 weeks. Once it is registered it is possible to use a Property and Affairs LPA can be utilized immediately, however a Welfare LPA can only be made use of once it has been registered and the donor has lost his capacity in making decisions. When creating the LPA the Donor may nominate up to 5 persons to be notified about the application to sign up. People who are notified will have an option to refuse registration if they are concerned, such as the integrity of the attorney. It is not a requirement that individuals be nominated, however it is advisable. A registered LPA is placed in the OPG database and searches could be made by third parties to see whether there is an LPA exists. Removing an LPA An LPA may be terminated by the donor at any time provided the Donor is mentally competent. The Attorney is also able to revoke the appointment. There are instances when an LPA could be terminated. They include:
  • When the sole Attorney dies or is declared bankrupt. If two or more Attorneys are appointed to fill the vacancy, the appointment of the remaining or non bankrupt Attorney will continue;
  • When the Donor dies;
  • When the Donor is made bankrupt (NB this rule does not apply to the Welfare LPA);
  • If the Attorney is member of a civil or a civil union, and the marriage is terminated by divorce , the civil partnership becomes dissolved. The LPA may, however, provide that the appointment is to continue even after the dissolution or divorce.
However, a decision to grant someone authority to handle your financial affairs is not one that should be made lightly. It is therefore advised to seek out a solicitor who is a registered Trust and Estate Practitioner with extensive experience in dealing with these types of issues if you're contemplating granting a lasting Power of Attorney.

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