A Growing Need.
Dementia alone in the UK effects around 700,000 people according a recent Alzheimer's Society report. The same report predicts that as the UK population ages this number will increase significantly. Currently 64% of all people living in care have some form of dementia.
As from the 1st October 2007 citizens of England and Wales can no longer get an Enduring Power of Attorney (EPA) issued. The old form of Enduring Power of Attorney has been replaced by a new document called a Lasting Power of Attorney. The change is far more significant than the change of a single letter in the acronym used for each.
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The change comes about as part of The Mental Capacity Act 2005. This act introduces a new structure for the protection and empowerment of vulnerable people who are not able to make their own decisions. The legislation is based upon five key principles:
o the right of every adult to make their own decisions. They must also be assumed to have the capacity to make such decisions unless it can be proved otherwise
o the right for individuals to be supported to make their own decisions
o individuals must retain the right to make what might be seen as eccentric or unwise decisions
o anything done for or on behalf of people without capacity must be in their best interests
o anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.
What Can Be Done?
The new Lasting Power of Attorney (LPA) comes in two parts and it is possible to have either part created separately.
Each LPA document deals with a different area of protection for the individual. Each LPA documents has to be registered before it can be used.
The two parts covered:
Property and Affairs
Personal Welfare.
Property and Affairs LPA
This LPA is very similar in concept and scope to the old enduring power of attorney document. It gives the donor the ability to appoint a person or people they trust to look after financial affairs.
This gives the attorney or attorneys to power to operate bank accounts in the donor's name, make investment decisions, sign tax returns and purchase a property for the donor's residence.
The LPA automatically restricts certain powers, in particular in relation to gifiting of the donors assets. Gifts that are permissible include;
o Gifts on (customary events) such as birthdays, marriages, christening to persons, including the attorney and relatives of the donor.
o Gifts to any charity to whom the donor made or might have been expected to make gifts. The value of such gifts must be reasonable with regard to the circumstances and, in particular, the size of the donor's estate.
The Court of Protection has the power to authorise more substantial gifts if satisfied that this would be in the donor's best interests. This could include lump sum inheritance tax planning arrangements for donors with significant assets.
Attorneys are restricted from doing certain things on behalf of or in place of the donor, these include:
o signing the donor's will
o taking on the donor's role as a life tenant
o acting as a personal representative of a will where the donor as named as executor
o appearing in court, in the donor's place, as a witness
o acting as a trustee in place of the donor (although it is possible to delegate trustee functions for up to 12 months, using an appropriate deed, under the Trustee Act 1925).
The donor can define other restrictions they might like to apply at the time of creating the LPA.
The attorney must always act only in the donor's best interests.
Personal Welfare LPA
As the name might suggest the second type of LPA that a donor can have created is to deal with personal welfare matters.
This enables the attorney or attorneys to make decisions that may deeply impact the way you live your life. This can include decisions on such things as, where you live, who you live with, how you dress, what you eat. They can also give or refuse consent to medical treatment according to your best interest.
Restrictions
Where an LPA authorises an attorney to make decisions about the donor's personal welfare, certain restrictions apply:
o an attorney can only authorise restraint of the donor to prevent harm and it must be proportionate
o the attorney's authority does not extend to making decisions in circumstances other than those where the
o donor lacks, or the attorney reasonably believes that the donor lacks, capacity
o the authority is subject to valid "advance conditions" made by the donor concerning the carrying out or
o continuing of a medical treatment
o an attorney may give or refuse consent to the carrying out or continuation of a treatment by a person providing
o health care for the donor but this does not extend to refusing life-sustaining treatment unless the LPA
o expressly says so and is also subject to any conditions or restrictions in the LPA.
Again the attorney or attorneys must act in the donors best interest.
Who Can Create a LPA
Anyone over the age of 18 can create an LPA, they must have mental capacity at the time of creation of the documents.
Who Can Be An Attorney?
Anyone over the age of 18 can be an attorney unless creating a Property and Affairs LPA then there is an exclusion for anyone who is a bankrupt or subject to an interim bankruptcy order.
Registration of LPA's
Before an LPA can be used it has to be registered with the Office of Public Guardian and before it can be registered part of the form has to be completed by a certificate provider.
The donor can choose who they want to be the certificate. The certificate providers role is to certify that the donor has mental capacity and was not under undue pressure to setup the LPA.
There are two categories of certificate provider.
Category A is anyone who has known the donor personally over the last two years.
Category B contains the following
Registered Healthcare Professionals (including GP's)
Registered Social Workers.
Independent Mental Capacity Advocate.
A Barrister. Solicitor or Advocate.
Others who self certify that they posses the relevant professional skills and expertise to complete details in the LPA form.
Members of the donors family cannot be certificate providers, nor can members of the attorneys family.
The owner, director manager or employee of a care home where the donor is resident or family member of any of the previous mentioned cannot be an attorney for a LPA.
A business partner or employee of a donor cannot be an attorney for a LPA.
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