4 - Power of Attorney Flashcards
Powers of Attorney
How does a general POA work?
A general power of attorney is valid while the person is mentally capable of handling their own affairs, but withdrawn on mental incapacity.
Enduring Power of Attorney
How does it work?
Dates
Unlike a general POA, an enduring POA can continue after the subjects mental incapacity.
However it relates ONLY to property and financial affairs, not medical.
No new ones could be created after 1/10/17.
Lasting Power of Attorney
What are they?
Replacement for the enduring POA which includes health issues as well as financial/property.
Lasting Power of Attorney
When are they revoked?
- Donor’s bankruptcy (not the welfare aspect of the POA);
- Death/bankruptcy of the attorney;
- Dissolution of marriage/civil partnership between donor and attorney;
- Attorney’s incapacity.
Lasting Power of Attorney
What is the impact if a person becomes incapable and there is no EPOA or LPOA?
Need to make an application to the Court of Protection (COP) for a deputy to be appointed.
This is costly and takes time so POAs are beneficial.
Lasting Power of Attorney
Requirements for LPA to be valid
- Donor and attorney both over 18 and not bankrupt;
- LPA must be in prescribed form;
- They must state they understand their duties;
- Must be a certificate from a prescribed person saying no fraud or undue pressure.
Power of Attorney
Duties of the attorney (7)
- Make decisions in the donors best interest;
- Make decisions authorised by the LPA;
- Consult with the donor and interested parties;
- Keep money separate;
- Keep affairs confidential;
- Ensure no conflicts of interest;
- Get approval from COP if a gift is to be made for IHT purposes.
Power of Attorney
How is an EPA registered?
- Attorney applies to the Office of the Public Guardian (OPG);
- when donor is becoming mentally incapable.
Power of Attorney
How is an LPA registered?
Requirements
- The LPA must be signed by the donor;
- Must be in the prescribed format;
- Must be sent to the office of the public guardian (OPG);
- The donor can register it before they lose mental capacity;
- OR the attorney can register it at any time;
- Forms must be accompanied by a certificate from an authorised person stating no fraud was involved, there was no undue pressure and the donor understood the consequences.
Mental Capacity Act (2005)
When did it come into force?
Main purpose
Groups involved in protecting people
Came into force in 1/10/17.
It defines capacity and provides a framework for assessing it.
It provides protection for people who lack capacity to make their own decisions through:
- The Court of Protection (COP);
- The Office of the Public Guardian (OPG);
- The Independent Mental Capacity Advocate (IMCA).
Mental Capacity Act (2005)
What are the 5 principles?
- Everything done for an individual without capacity must be in their best interests;
- Every adult has a right to make their own decisions unless proven otherwise;
- Individual must be given reasonable help to make their own decisions;
- Individual has the right to make unwise decisions and shouldn’t be treated as lacking capacity;
- Decision maker shouldn’t interfere with right and freedoms of incapacitated individual.
What powers does an attorney (LPA) have regarding welfare?
- Provide care and medical treatment;
- Give or refuse consent relating to continuing medical treatment;
- Apply proportional restraint to stop them from harming themselves.
What powers does an attorney (LPA) have regarding property and financial affairs?
- Operating bank accounts;
- Completing and signing self assessment tax returns;
- Purchase a residence for the donor;
- Make investment decisions;
- Make reasonable gifts on customary occasions (birthdays etc);
- Make reasonable gifts to charity (that the donor would have made).
Court of Protection
What are the powers/obligations of the COP over an individuals affairs?
- To decide whether the person has lost capacity;
- To make decisions on financial or welfare matters;
- In the best interests of the individual;
- To appoint deputies to make decisions;
- To remove deputies who fail to carry out duties;
- To hear cases relating to the care of the individual.
Which POA type would be used in which circumstances?
- General POAs are suitable for temporary situations, for example going abroad for under 12 months;
- Enduring POAs continue to be suitable for property and financial affairs only where there is a long term need;
- Otherwise a lasting POA is the most suitable for long term needs.
