What if I am unable to manage my affairs?
There may come a time in your life when you are unable
to manage your financial affairs or personal welfare,
owing to some form of incapacity and you will need someone
to act on your behalf.
Even when we are young, we can find ourselves incapacitated
owing to illness or injury and it can be invaluable having
a reliable person, who is able to manage your personal
affairs and remove the anxiety of having unpaid bills,
at a time when you most need peace of mind.
Similarly as we get older, the need for an attorney
increases as we are more prone to illness and injuries.
By creating an Attorney in
advance ensures that if the worst were to happen, you
can rest assured that both your financial affairs and
personal welfare are in safe hands.
So Who Do I Choose?
You can appoint a friend, relative, or a professional
as your Attorney which allows them to act on your behalf.
It is important that you choose who you would like to
act on your behalf very carefully. You should choose
people you can trust to act in your best interests, giving
consideration to how they manage their own affairs.
It is always a good idea to appoint more than one Attorney
to ensure that this power is not abused.
The Different Types of Powers of Attorney
You may have heard of an Enduring Power of Attorney (EPA)
and be aware that this was replaced in October 2007.
(EPAs set up prior to 1st October 2007 remain valid,
however, it should be noted that if the Donor is believed
to be becoming, or is mentally incapable of managing
their affairs then the Attorney(s) have a duty to register
the EPA with the Court of Protection).
It cannot be simply assumed that the Donor has lost mental
capacity and Attorneys must follow the principles of
The Mental Capacity Act 2005. Copies of the Code can
be obtained from Her Majesty’s Stationary Office.
If you hold an Enduring Power of Attorney and still have
mental capacity and are able to make decisions for yourself
(ie.the EPA is unregistered) you can make a Personal
Welfare LPA to run in conjunction with the EPA.
So, What has Replaced Enduring Powers of Attorney?
These have been replaced with three different documents:
- A Lasting Power of Attorney (LPA) for Property and
- A Lasting Power of Attorney (LPA) for Personal Welfare
- A General Power of Attorney
Please note these Powers are only applicable to England
LPA for Property and Affairs
A Lasting Power of Attorney for Property and Affairs
gives authority to the appointed Attorney to handle property
and financial matters for the Donor.
The powers extend to all matters concerning the Donor's
finances: this could include selling property belonging
to the Donor, (including the Donors home), buying property
in the Donor's name, managing bank accounts and investments,
continue to run their business and make decisions about
the Donor's healthcare and payment for this care.
LPA for Personal Welfare
A Lasting Power of Attorney for personal Welfare
covers decisions relating to your social and healthcare
needs which can include where the Donor lives, how they
are cared for and what healthcare they receive, for example
the decision to send the Donor to a nursing home.
Attorneys of a Personal Welfare LPA can only use this
power if the LPA document has been registered with the
Office of Public Guardian and the Donor is not capable
of making the decision themselves.
Directive or Living Will can be overridden
by a subsequent Personal Welfare LPA if the Donor has
specifically chosen to give their Attorney the authority
to give or refuse life-sustaining treatment on their
behalf. This also means that a Personal Welfare LPA can
be overridden by a valid and applicable Advance Directive
(Living Will) made after the Personal Welfare LPA, if
in the LPA the Donor has chosen not to give authority
to their Attorney to authorise life-sustaining treatment.
The Personal Welfare LPA covers both the welfare of
the Donor and the consent or refusal of consent to life
Further rulings on LPAs;
An LPA must contain a certificate completed by an independent
person to confirm that the Donor understands the power
and importance of the LPA and is not creating the power
Anyone the donor specifies can be notified of the registration
of the LPA (up to 5 people), however if there is no one
to notify then the Donor must have a second Certificate
It should be noted that Lasting Powers of Attorney have
no legal standing until registered with the Public Guardian’s
Office. They can be registered at any time ie: before
the Donor loses mental capacity or when the Attorney
believes this to have happened.
After registration, the Donor can continue to make decisions
providing they still have the mental capacity to do so.
Revoking or Cancelling the Power
The Donor can revoke or cancel the LPA (providing they
have the mental capacity to do so. If a spouse or civil
partner is the Attorney, or Donor, dissolution or annulment
of the relationship will automatically revoke the power.
An LPA for Property and Affairs is revoked if the Attorney(s)
or the Donor are declared bankrupt.
An LPA for Welfare is not terminated by bankruptcy.
General Power of Attorney
A General Power of Attorney allows the Attorney to make
decisions and act in any matters relating to the Donor’s
property and affairs (with the exceptions of making a
Will, making gifts or performing in the Donor’s
role as a Personal Representative (administrator) or
It is important to note that the Donor remains liable
for the actions of the Attorney and as such you should
only appoint an Attorney who you implicitly trust.
A General Power of Attorney (GPA) is effective immediately
and will remain in force until it is either cancelled
by the Donor (the person on whose behalf the Attorney
is acting) or, should the Donor become mentally incapable,
then the General Power is automatically revoked. The
General Power would also be revoked by the death or bankruptcy
of either the Donor or the Attorney.
Unlike a Lasting Power of Attorney a GPA there is no
scope for restricting the Attorney’s powers.
A General Power of Attorney can be revoked at any time
by either writing cancelled across the document or simply
tearing it up.
Call 01444 883100 or 01489 481569 for more information
or simply register to download one of our guides.