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Appointing an Attorney - What You Need to Consider

on Thursday, 12 January 2017.

We frequently receive requests for ‘back to basics’ guides on putting your legal affairs in order. In this issue, we cover Lasting Powers of Attorney (LPAs).

An LPA enables someone to authorise a person of their choosing (their Attorney) to make decisions on his or her behalf.

What type of LPA do I need?

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. 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 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. This LPA is used to protect the financial interests of the donor.

With both types of LPA, an Attorney must act 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. 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.

What if I don’t have an Attorney?

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

This can be avoided by taking timely and appropriate advice on the appointment of an Attorney.

Appointing an Attorney could well save you time and money in the long run.

For more information, please contact Mary McCrorie on 0117 314 5368.

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