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July 24 2018Read more
This authorisation can be given on a temporary basis, through an ordinary power of attorney, or on a permanent basis, through a lasting power of attorney (LPA).
An ordinary power of attorney is valid whilst the donor has mental capacity but, for example, has a short term physical illness during which they wish for another individual to look after their affairs. The powers granted would therefore be revoked automatically in the event of the donor then lost mental capacity.
A LPA may be necessary in circumstances where it is foreseeable that a donor may, in the near future, become unable to manage and make financial, property or health-related decisions on their own behalf. This could be due to ongoing medical treatment, old age, or when the donor is expected to lose mental capacity. In any event, a power of attorney cannot be made without the consent of the donor.
An attorney is not required to have any legal knowledge or training. As such, the donor can appoint anyone they deem to be trustworthy as their attorney, provided that the individual is 18 or over.
Importantly, a donor can appoint more than one attorney to make decisions on their behalf. In this instance, the power of attorney would stipulate whether decisions should be made ‘jointly’ or ‘jointly and severally’ (meaning either together or individually).
A LPA must be made whilst the donor is still capable of making decisions. A LPA can be created online through the gov.uk website. Alternatively, paper forms can be completed and sent to the Office of the Public Guardian.
When the LPA is made, it will need to be registered with the Office of the Public Guardian. There is a £82 application fee to register each LPA: https://www.gov.uk/power-of-attorney.
In Scotland, there are two types of power of attorney, a continuing power of attorney and a welfare power of attorney. A continuing power of attorney can be made with the intention of it becoming effective immediately (when the donor is still capable of making the relevant decisions), and is in relation to property and financial affairs. A welfare power of attorney is for decisions regarding health and welfare and can only become effective once the donor becomes incapable of making decisions. Regardless of the type of power of attorney in question, the document must be certified by a solicitor or medical practitioner. A power of attorney must be registered with the Office of the Public Guardian in Scotland.
There are two types of power of attorney under Irish law. A power of attorney, which can be used whilst the donor has mental capacity, and an enduring power of attorney which becomes effective upon the donor losing mental capacity.
To create an enduring power of attorney, the following documents are required: a statement by a doctor confirming that the donor had mental capacity at the time of the execution of the document; a statement from the donor confirming the donor understands the effects of creating the power of attorney; and a statement from a solicitor confirming their satisfaction that the donor was aware of the effects of a power of attorney, and that the donor was not acting under undue influence. An application must be made to the Registrar of Wards of Court to register the power of attorney.
Similarly, in Northern Ireland, a power of attorney terminates in the event of the donor losing mental capacity. An enduring power of attorney, however, can continue in these circumstances.
An enduring power of attorney, must be registered with the High Court (Office of Care and Protection) to become effective, although registration is not strictly required until the point at which the attorney believes the donor is no longer capable of managing his own affairs.
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