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I Get by with a Little Help From my Friends… Appointing an Attorney

on Friday, 16 September 2016.

A Lasting Power of Attorney enables someone to authorise a person of their choosing, (their Attorney) to make decisions on his or her behalf.

Many people have heard of Lasting Powers of Attorney but how do they work in practice, and what are the different types of LPA that you can choose?

Two Types of LPA

Of the two types available, you can opt to have just one, or both.

Health and Welfare LPAs concern decisions relating to medical matters, living arrangements, day-to-day care and the wider social well-being of the person (known as the donor) who has appointed an Attorney.

Most of us would want to be cared for by people we trust at times of vulnerability in our lives. This type of LPA allows an Attorney to make such decisions to the extent that the donor is not able to make them. This is important to note as, wherever possible, an Attorney must, by law, enable and assist the donor to make their own decisions insofar as they can manage to. It is only at the point where the donor cannot manage to decide for themselves, that the Attorney will step in to act.

Property and Financial LPAs give an Attorney authority to decide and act in property dealings, bank account withdrawals or transfers, completing income and tax returns, claiming benefits and pensions, as well as on wider financial matters. Managing financial affairs can be a complex business, and this LPA is used to protect the financial interests of the donor.

With both types of LPA, any decision made by an Attorney must be made in the best interests of the donor.

Will I be giving too much control away?

LPAs are important tools in protecting the interests of a vulnerable person, who may need to have decisions made on their behalf now or in the future. A donor can often be more reluctant to appoint a Health and Welfare Attorney than a Property and Financial Affairs Attorney, because welfare decisions can include deciding about the donor's medical care, and weighty issues such as whether the donor should go into residential care.

If any concerns are raised about an Attorney's actions, the Court of Protection can intervene and investigate. Ultimately, the Court can remove the Attorney from post if it considers this to be necessary.

In practice, any such concerns should be alleviated by the donor's choice of Attorney. A donor is advised to appoint an Attorney whom they know and trust, such as a close relative or friend. With the right arrangements in place, LPAs can provide great peace of mind by ensuring that the donor has help when needed.

If no Attorneys are appointed and a person loses capacity, the alternative process of applying to Court to have a Deputy appointed is a much more expensive and restrictive.

Having no option but to go to the Court of Protection is something that can be avoided by taking timely and appropriate advice on the appointment of an Attorney and, importantly, the types of restrictions that should be put in place to give you peace of mind.

If you would like further advice or information about how to appoint an Attorney, please contact Mary McCrorie on 0117 314 5368.

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