LASTING POWER OF ATTORNEY EXPLANATORY LEAFLET

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1 LASTING POWER OF ATTORNEY EXPLANATORY LEAFLET A Pwer f Attrney is a legal dcument where a persn gives anther persn r persns (the Attrney) authrity t make certain decisins n his r her behalf. A Lasting Pwer f Attrney (LPA) is a special type f Pwer f Attrney, in that it cntinues even if the persn giving the pwers becmes mentally incapable f dealing with their affairs. S that yu are clear, an LPA: Has nthing t d with what happens when yu die. Des nt prevent yu frm cntinuing t make decisins and deal with yur wn affairs fr s lng as yu are capable. Indeed, yur Attrney must take n bard yur views s lng as yu are capable f giving them. Yu are nt giving away any f yur assets t anyne else yur Attrney is just able t deal with thse assets. Types f LPA There are tw types f LPA as fllws: An LPA Prperty and Affairs (referred t belw as an LPA- Financial) which allws yur Attrney pwer t deal with yur prperty and finances. This can include: Buying r selling prperty Opening, clsing r perating a Bank r ther accunt Giving access t financial infrmatin Claiming, receiving and dealing with all benefits, pensins, allwances etc Receiving incme, inheritance r ther entitlement n behalf f yu Dealing with yur tax affairs Paying yur mrtgage, rent and husehld expenses Insuring, maintaining, repairing yur prperty Making limited gifts n yur behalf Paying fr private medical care r care hme fees Applying fr entitlement t funding fr NHS and scial care Buying a vehicle r ther equipment t meet yur needs An LPA-Persnal Welfare (referred t belw as an LPA-Welfare) which allws yur Attrney t make welfare and healthcare decisins n yur behalf, but nly when yu lack the mental capacity t make thse decisins yurself.

2 This can include: Where yu shuld live and wh yu shuld live with Yur day t day care including diet and dress Cnsenting t r refusing medical examinatins and treatment f yu Arrangements needed fr yu t be given medical, dental r ptical treatment Assessments fr the prvisin f cmmunity care services Whether yu shuld take part in scial and leisure activities, educatin r training Yur persnal crrespndence and papers The right t access persnal infrmatin abut yu T make cmplaints abut yur care r treatment In additin under yur LPA-Welfare yu are able t give yur Attrney the pwer t make life sustaining treatment decisins n yur behalf. This essentially includes the ability fr yur Attrney t decide whether r nt yu shuld be kept alive in certain circumstances. This is a very significant pwer yu can place in the hands f yur Attrneys and befre making any decisin yu shuld discuss this with the Attrney, yur GP, any ther relevant health r scial care prfessinals and yur religius advisr. Yu must state n the frm whether yur Attrney shuld have that pwer r nt. As an alternative t giving yur Attrney the right t make decisins ver life sustaining treatment, yu may prefer t put in place an Advance Directive (Living Will). An Advance Directive is a separate dcument where yu give directins t yur dctr as t whether yu shuld receive treatment in circumstances where the quality f yur life is negligible and yu are therwise unable t make any decisin at that time. Please raise this if yu wish t discuss it further. In bth cases yu are nt authrising euthanasia. In respect f bth types f LPA yu can place any restrictins and cnditins n the Attrney s pwers and als t prvide the Attrney with guidance as t hw yu wuld like them t carry ut their duties and make decisins (see belw). An Attrney shuld always act in yur best interests. Yur Attrney As yu can see frm the pwers yu can give t yur Attrney, an LPA is a very imprtant dcument and yu shuld take great care as t whm yu appint. An Attrney shuld be trustwrthy and have the apprpriate skills t make the relevant decisins. They shuld be able t get alng and wrk with the ther peple and rganisatins wh will be invlved in yur life, including

3 any ther Attrney. Yu can have different Attrneys fr each type f LPA, but this can cause cnfusin and cnflict. Eg Chice f care hme ne LPA gives cntrl f finances, the ther the chice f where yu live wh takes precedence if the different Attrneys disagree? An Attrney lses their pwers if they disclaim thse pwers, die, lack mental capacity, disslve r annul their marriage r civil partnership t yu r in the case f the LPA-Financial, becme bankrupt. Yu have a chice as t hw many Attrneys yu appint. Yu can appint ne r mre than ne. If yu appint mre than ne then yu have t decide whether they shuld always act tgether r they can act separately f each ther. Yu may even appint yur Attrneys t act tgether fr sme things and separately fr thers, althugh this needs t be cnsidered carefully as in sme circumstances it can cause prblems when using the pwer. Set ut belw are sme f the prs and cns f each f thse ptins. One Attrney If there is nly ne persn wh yu trust t deal with yur affairs then this wuld be the best ptin. Hwever, the pssibility f abuse r the making f a bad decisin is that much greater as there is n ther individual wh the Attrney needs t refer any decisins r can therwise keep a prper check n the Attrney s actins. There wuld als be a prblem if the Attrney was n lnger able t act temprarily r cmpletely (as set ut abve). The LPA wuld then be unusable, unless yu had als appinted a replacement Attrney (see belw). Tw r mre Attrneys acting tgether If there is mre than ne persn wh yu trust and wuld have the apprpriate skills then it usually makes sense t appint tw r mre Attrneys. The principal advantage f them having t wrk tgether is that it gives bth yu and them the mst prtectin frm anyne trying t abuse the pwer r making a bad decisin. All decisins and the signing f any paperwrk wuld have t be dealt with by all the Attrneys. Hwever this ptentially raises practical prblems if the Attrneys are nt lcal t each ther r ne f them was unable t act at any time, even if nly n a temprary basis. The LPA wuld be unusable withut the availability f bth Attrneys. Again, this can be helped in part by the appintment f a replacement Attrney. Tw r mre Attrneys acting tgether r independently If yu have tw r mre persns wh yu trust and are capable f acting as yur Attrneys then this is the mst flexible ptin available in that althugh the Attrneys can make decisins tgether they can als wrk separately. As such if ne was nt available then the ther culd still act n yur behalf. Because they can wrk independently this des lessen yur prtectin frm

4 abuse r the making f a bad decisin, but there wuld at least be ne ther persn wh yu have chsen with the legal right t keep a check n yur affairs and the decisins being made. Tw r mre Attrneys smetimes acting tgether and smetimes acting independently This is a mixture f the last tw ptins whereby in making sme decisins the Attrneys must act tgether but in thers they can act independently. In general terms all f the issues that arise are as set ut abve, but dependent upn whether the Attrneys need t act tgether in respect f ne particular decisin r can act independently. It is pssible that there may be sme difficulties with sme rganisatins accepting an LPA set up n this basis and therefre the psitin needs t be very clear. It may be better t use the restrictins and cnditins as a means f putting in place any additinal prtectin that yu feel is necessary n certain issues. A Replacement Attrney A replacement Attrney is an Attrney wh will stand in place f a first chice Attrney, shuld that Attrney n lnger be able t act (see circumstances mentined abve). This is particularly helpful if yu are selecting nly ne Attrney r tw r mre Attrneys wh must act tgether. All f the same issues arise in chsing a replacement Attrney as apply t yur first chice Attrney. Yu can have mre that ne replacement Attrney and make their appintment subject t certain restrictins and cnditins, such as which first chice Attrney they shuld replace and in what circumstances. Restrictins and Cnditins Set ut at the beginning f this leaflet is a list f the types f decisins and actins which yur Attrney is entitled t take under yur LPA Financial and LPA Welfare, if yu d nt place any restrictins r cnditins n their pwers. Yu are entitled t place such restrictins and cnditins as yu like in rder t prtect yur interests. Examples f sme cnditins are as fllws: LPA Financial Buying r selling prperty yur Attrney will have the ability t purchase, sell, mrtgage etc yur prperty n yur behalf. Yu may prefer them nt t have that pwer withut at least having referred the matter t yu r smebdy else and gaining their apprval. Making f gifts yur Attrney has limited pwer t make gifts frm yur prperty. It must be t smene whm yu are related r cnnected and n specific ccasins such as birthdays, weddings and ther family events when yu might have been expected t have made such a gift. Gifts can be made t charities that yu supprt. The gift must always be reasnable in relatin t the value f yur assets and

5 yur n-ging needs. Yu cannt increase the pwer f the Attrney t make greater gifts, but yu can remve their right t make such gifts. Delegatin f Investment Pwers - whether yur Attrney can transfer yur assets in t the hands f a management scheme perated by a stckbrker r Bank. Withut the cnditin they wuld nt be able t d s. Accunts - yu culd require yur Attrney t prduce accunts t be audited i.e. by yur slicitr r accuntant. Yur Will Yur slicitr is nt able t disclse yur riginal will t yur Attrney unless yu specify s. Release f Infrmatin - Yu may wish t restrict what infrmatin yur Attrney can get access t. When the Attrney s pwers start - It is a matter f law that the LPA Financial cannt becme effective until it has been registered with the Office f the Public Guardian (OPG). Hwever, yu can specify that even after registratin it des nt becme usable unless yu became incapable f dealing with yur affairs. Hwever, this can be prblematic as it may be necessary fr prf f yur incapacity t be prvided t any rganisatin which yur Attrney is dealing with t prve that yu remain incapable every time they deal with that rganisatin. It may als be that it wuld be advantageus t yu t have sme assistance even whilst yu remain capable. Yu can place a restrictin t say that yur Attrney shuld nly register the LPA if they believe, r are tld by a Dctr, that yu lack capacity t make a decisin. Until that time the LPA wuld f curse nt be useable. Hwever, there are reasns nt t delay registratin indefinitely (see belw). LPA - Welfare Where yu shuld live and wh yu shuld live with yu culd place restrictins n the ability f yur Attrney t decide n these issues alne. Persnal cntacts again, yu culd indicate that yur Attrney cannt make a decisin as t where yu g r wh yu have cntact with. T make just welfare decisins r just medical decisins yu may nt be happy fr yur Attrney t make health decisins regarding yu r alternatively nt t make welfare decisins. This may be due t religius r spiritual beliefs. In the case f bth types f LPA any restrictins and cnditins need t be cnsidered carefully, t ensure that in the wrst case scenari yur Attrney

6 has the ability t deal with all matters which need t be decided upn n yur behalf.

7 Guidance Unlike restrictins and cnditins, guidance is nt binding upn yur Attrney, but yu can expect yur Attrney t take such wishes int accunt when making any decisin n yur behalf. Yu may fr example wish t give yur Attrney guidance as t hw much yu wuld wish them t give t relatives n birthdays r the circumstances when they shuld sell yur prperty. Als where yu wuld want t live and what treatments yu may prefer nt t have. Chice f persns t be ntified Yu can chse up t 5 peple t be ntified when any LPA is registered with the OPG. Subject t any restrictin yu may have included, nce the pwer is registered it can be used by yur Attrney. It is cnsidered an imprtant safeguard that ther peple are made aware when yur LPA is registered. The intentin is that the individuals ntified will keep a lk ut n yur behalf t see that yur Attrney is nt abusing their pwers. As such, ideally the persn shuld be smene wh is interested in yu and with whm yu are likely t have cntact thrughut yur life. Yu shuld perhaps speak t them t make sure that they are prepared t take the rle seriusly. Als it is nt a gd idea t chse smene wh is likely t cnflict with yur Attrney althugh n the ther hand nt smene wh is under the influence f yur Attrney. The peple ntified have the right t bject t the registratin. It is usually advisable t have at least ne persn ntified f the registratin. Hwever, it is nt an abslute requirement. If yu dn t chse anyne t be ntified then yu must have an additinal Certificate Prvider (see belw), which may add an additinal expense t the creatin f the LPA. Chice f Certificate Prvider T be valid, an LPA must include a certificatin cmpleted by an independent third party knwn as the Certificate Prvider. The Certificate Prvider has t certify that: Yu understand the purpse f the LPA and the scpe and authrity f it There is n fraud r undue pressure being placed n yu t create the LPA There is nthing else that wuld prevent the LPA being created It is pen t yu t chse wh yu wish t act as yur Certificate Prvider but they must be ver the age f 18 and cannt be: A member f yur family A family member f any f yur Attrneys

8 Yur business partner r paid emplyee Any Attrney appinted under anther LPA r an Enduring Pwer f Attrney The wner, manager r emplyee (r a family member r partner f theirs) f a care hme in which yu are living A Directr r emplyee f a trust crpratin appinted as yur Attrney There are tw types f Certificate Prvider: A knwledge based Certificate Prvider smene wh has knwn yu persnally fr at least tw years A skills based Certificate Prvider smene with the relevant prfessinal skills and expertise t certify the LPA. This includes a registered healthcare prfessinal (including a GP), a registered scial wrker, a slicitr, a barrister, an independent mental capacity advcate and smene else wh cnsiders they have the relevant prfessinal skills. Yu are best advised t appint a Certificate Prvider wh has the apprpriate knwledge and experience f issues relating t mental capacity and the use f the LPA. It is imprtant that any Certificate Prvider has the relevant knwledge and experience t be able t give the certificatin as mentined abve. As such this wuld tend t mean that a skills based Certificate Prvider is the better ptin. In additin, the use f a skills based Certificate Prvider has greater standing shuld there be any challenge t the validity f the LPA. A skills based Certificate Prvider is usually ging t want t charge fr prviding the certificatin. Registratin As has been mentined yur LPA will nt be valid until it has been registered with the Office f the Public Guardian. There is a cst invlved fr registering each type f LPA with the OPG. The LPA can be registered by yu r yur Attrneys at any time after it has been cmpleted and signed by all thse required t sign. The persns yu have indicated shuld be ntified abut registratin will need t be ntified at this pint in time. The principal issues in deciding whether t register immediately r delay are as fllws:

9 Delay Registratin Register Immediately The registratin fee is nt paid until The fee is paid even if yu d nt need the Pwer needs t be used. The fee the Pwer t be used immediately. may have changed in the meantime. Yu knw what the cst is. The registratin prcess delays the As sn as the Pwer needs t be use f the Pwer fr arund 5 t 6 used it is ready and available. weeks. The Attrneys will nt be able t use the Pwer during the registratin prcess. The Attrney can apply t Curt in an emergency but there will be extra csts invlved. If yu change yur mind yu can If yu wish t cancel the LPA and cancel the LPA withut any prblem. make anther ne then additinal fees will need t be paid t the OPG. N requirement t keep the OPG The OPG needs t be kept infrmed f infrmed f any change f address/ any change f address/names. name. Yu retain cntrl ver the LPA Yur Attrney can use the LPA Financial s it cannt be used until Financial immediately nw registered. yu chse fr it t be registered r it (subject t restrictins) needs t be registered Yu shuld als be aware that nce registered certain infrmatin becmes a matter f public recrd. This includes: Yur name (including previus name) and date f birth The type f LPA yu have (but nt its cntents) The date the LPA was created and registered The names f yur Attrneys The type f appintment used (sle, tgether etc) Whether the LPA cntains any restrictins, cnditins r guidance (but nt the actual details) Whether a nte has been attached t the LPA (but n details f the nte) In additin smene can make an applicatin, paying a fee, t btain further infrmatin abut the LPA. Hwever they will have t explain t the OPG why they require this infrmatin and that the release f it is in yur best interests. Jacbs & Reeves Slicitrs

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