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Powers of Attorney
Solicitor Vipin Adhia heads up the Conveyancing, Wills and Probate division at Collins Solicitors in Watford
Q: My parents are getting older and they are already in their 70s. My father’s health and mobility are in decline. Although my mother helps, it is also difficult for her. They wish to sell their house and move closer to us. Can you suggest something that may help?
A: One option available to you is to consider Powers of Attorney (POA). The most common use for a Power of Attorney, or a Specific Power of Attorney as it is sometimes called, is where the buyer or seller of a property is unavailable to sign the necessary legal papers to complete the transaction and therefore appoints someone close to act as their Attorney.
The POA gives an Attorney the necessary authority to act for the person(s) giving the power (the ‘Donor’) defining the extent of his authority which third parties will accept as evidence of that authority. However, this kind of Power usually has a life of one year and cannot be used once the Donor has lost mental capacity.
Existing Enduring Powers of Attorney
An Enduring Power of Attorney (EPA), validly made by September 30, 2007 gives an authority which continues even if the Donor becomes mentally incapable. Since October 1, 2007 the EPA has been replaced by the Lasting Power of Attorney (LPA).
Lasting Powers of Attorney – Property and Affairs and/or Personal Welfare
In addition to making a Will, many people have an LPA drawn up in which they appoint a spouse or a family member to manage their property and financial affairs for them should they lose physical or mental capacity in the future.
Would it help you if a relative or friend could deal with all your paperwork including bank accounts, pensions, benefits and bills to taking the strain out of looking after finances and other affairs? If yes, it is a Property and Affairs LPA that you need.
A Personal Welfare LPA gives your attorney authority to make welfare and healthcare decisions on your behalf but only when you lack mental capacity to do so yourself. This could be extended to giving or refusing consent to life-sustaining treatment. Obviously, this is a matter for the Donor to consider and discuss with both the Attorney(s) and their medical practitioner before inclusion. The Donor might not wish to extend their powers in this way as he or she may think it is unfair.
Both LPAs have to be registered with the Office of the Public Guardian before they can be used. For this it is simplest to use a solicitor, such as Collins Solicitors in Watford.
What happens if you have not made an LPA or EPA?
If you lack capacity to make a financial decision, and have not formally appointed an Attorney, then someone who will not be chosen by you will have to apply to the Court of Protection to be appointed your ‘Deputy’. This is both costly and time-consuming.
Most care and treatment decisions can be made on your behalf without the need for a Court application. However, if you wish to avoid potential disputes, you can give a person(s) authority to make those decisions on your behalf by making a Personal Welfare LPA.
Contact Collins Solicitors on 01923 223324 or visit www.collinslaw.co.uk
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