A Lasting Power of Attorney

A Lasting Power of Attorney is a legal document giving significant powers to someone you trust to take care of your affairs both financial and regarding your health care should you become incapable of managing your own affairs through illness.

If you don't have one in place and you are suddenly rendered incapable of making your own decisions through illness or accident then your nearest and dearest will have to make an application to the Court of Protection to appoint someone to handle your affairs.

This is both a time consuming and expensive process but most importantly you will have lost the ability to choose who you would trust the most.

When you're fit and healthy a Lasting Power of Attorney is something you don't necessarilly contemplate unless you have had an experience of caring for a relative who is suddenly incapable of making decisions for themselves. In my instance it was my Mother.

Mum was diagnosed with Alzheimers shortly after my Father died and the first thing I did upon her diagnosis was discuss with the family that we should immediately get a Lasting Power of Attorney drawn up.

Mum was at a stage where she could still understand what a Lasting Power of Attorney was and understood it would give us, the family, (me in particular) the power to manage all her finances.

This is important because the person making the power of attorney (the donor) must be able to prove they understand the implications of the
document to the Solicitor who is appointed to draw up the document.

We had already experienced several occasions when Mum was either in hospital or not feeling well enough to go out when she needed money to cover various expenses. Without the Power of Attorney in place it meant I had to cash a cheque for her and then pay it into my account or get her to sign a letter of authority for me take to the Bank. All very tedious and time consuming.

Of course she could have given me her debit card and pin number under normal circumstances but she couldn't remember her pin number!

Types of Lasting Power of Attorney

Lasting Powers of Attorney (LPA's) came into force on October 1st 2007 and replaced Enduring Powers of Attorney.

The first type of Lasting Power of Attorney is a Property and Financial Affairs LPA which gives an attorney power to look after both your money and your property.

This can be used before and after a person becomes incapable of managing their own affairs.

If you wish you can stipulate that the LPA can only be used when the individual loses capacity. However in Mum's case was extremely beneficial to be able to use it long before she ever became incapable.

When you have the signed Power of Attorney you take it to the Donor's bank where it is officially lodged.

The second type of Lasting Power of Attorney is a Health and Welfare LPA. This gives an attorney authority to make decisions such as where a person should live, should they need to go into care, or it can also extend to giving or refusing consent to the type of medical care they

The Health and Welfare LPA can only be used when the person has lost the mental capacity to make their own decisions.

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A Living Will

There is an alternative to the Welfare Lasting Power of Attorney which is the 'Living Will' or an 'Advance Medical Directive' as it is otherwise

This is a written statement of future wishes about any medical treatment that may become necessary should a person become terminally ill or incapacitated.

This allows them to refuse specified treatment in specified circumstances. For instance someone who has complex medical conditions may decide they do not wish to be resuscitated if their heart should stop.

Since October 2007 there has been a clear legal status to Advance Medical Decisions which means that health professionals have to follow them, but it is important that they are well drawn up so they are valid and applicable to the specified treatment and circumstances.

Anyone considering making a Living Will should discuss their wishes with their immediate family beforehand, so that the family are aware of it.

The document is not intended to be a substitute for discussion with medical staff, which is always recommended if possible.

You would not need to have an Advanced Medical Directive in place if you had a Health and Welfare Lasting Power of Attorney in place.

Who You Should Appoint as Attorney

You should take care whom you appoint as an Attorney as it should be someone you can wholly trust and someone who possesses the necessary skills to act in your best interests.

The attorney will only be able to act when the Lasting Power of Attorney has been signed by you and your attorney. It will need to be certified by a person, usually your Solicitor, that you understand the nature and scope of the LPA and that you have not been unduly pressured into making the LPA.

The certificate must be registered with the Office of Public Guardian before it can be used and only if you lack mental capacity to
make a welfare or medical decision.

If you don't have either a Living Will or a Lasting Power of Attorney in place it puts your future treatment in the hands of others.

It could mean that not even your family would have a say in how you were treated.

It is therefore something that should be reviewed regularly as part of your on-going planning and review of wills and estates.

There are Solicitors who specialise in the preparation of wills and trust and all associated matters which would include Lasting Powers of
Attorney and Advance Medical Decisions.

Look for Solicitors who are members of Solicitors for the Elderly or of STEP, the Society of Trust and Estate Practitioners, a global organization that specialise in providing legal advice for older people.

To find a member in your Country and locality go to www.step.org.

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