POA & Wills Flashcards
Process, Authority, Revocation, No LPOA
8 points
Process of setting up POA
- Mental Capacity
- Over 18
- Use prescribed documents/complete application form
- Donor signs document
- Certificate provider signs document to verify Donor’s competency or LPA cannot be set up
*All Attorneys must sign to accept responsibilities
*All signature must be witnessed
*Wishes/instructions must be specified in document
*Specify whether Attorneys to act joint or joint and several basis
*Pay application fee and register LPA
7 points
outlilne the decisions that Tom and Sally will need to make whilst completing the paperwork to set up LPA
- Who the attorneys will be
- Will it be the same attorney for each LPA
- who would they want as replacement attorney
- Who the certificate provider would be
- Attorneys power to act joint or joint and several basis
- Properties and Affairs and/or Health Wealthfare (only when mental capacity lost
When do they want the financial decisions LPA to come into effect - What instructions or preferences they wish to include
- What preference about their care or end of life requirements
- Who they would like notified whe the LPA is registered
When can LPA be revoked
- On death
- Replace with new application/when donor wishes
*Loss of mental capacity
*On bankruptcy
What happens when there is no POA/LPOA
*Court of protection would evaluate whether Tom or Sally have capacity to make their own decisions
*Need to apply to court with regards to any welfare decisions
*If unsucessful COP appoint one of their officers to act on their behalf (officer)
*More expensive than setting up POA/LPOA
Mirrored wills features and drawback
- Spouses or partners make identical or near identical wills
- The surviving spouse is not bound by the will
- Surviving spouse could remarry and if will not worded carefully children of the deceased spouse may not inhterit anything upon death of surviving spouse
Duties of an Attorney
- Must act in the best interest of the donor
- Display duty of care
- Duty to carry out donors instruction
- Cant delegate authority unless specified in the POA
- Maintain confidentiality
- Record payments made on behalf of the donar
- Keep donor’s money and property separate from attorneys
- Cant recieve payment for services unless professional attorney, though they could claim reasonable expenses
Limitations of Attorneys
- Cant amend or execute a will
- limited powers in gifting can only be made:
- to be people known or related to the donar
- on specific occassions such as birthdays or weddings
- to charities as long as its in the best interest of the donar and reasonable
Benefits and drawback of POA
BENEFITS
* Donar can document pre determined wishes on welfare and financial issues
* They can ensure control of who will make the decisions on their behalf
* Can select replacement attorney
* Avoid delays in cost of dealing with court of protection
* Peace of mind that someone is there to act on their behalf
* Can make small gifts on behalf of the donor only to people the donar knows or related to them
* Can make financial decisions behalf of the donar, can be before mental capacity is lost
* They can make payments on behalf of the donar
* They can make medical decisions according to the donar’s wishes once the donar loses capacity
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DRAWBACK
* Restrictive on IHT palnning once POA is in power
* If mental capacity is lost, then LPA cannot be revoked
* Can be relatively expensive to drawup
* Difficulty in getting all chosen POA to sign and witnesses in place for signing LPA documents
10 points
Describe the benefits to Tom and Sally if they each set up a LPA
- They are in control of who they wish to be their attorney
- They can also choose replacement attorneys in evern the original attorney are unable to act
- They can leave instruction for the attorney so that their wishes are known
- They can leave instruction for their health and welfare about their end of life care or wishes in this area
- They can choose someone to look after their property and financial affairs
- This can be used before capacity is lost
- They can choose someone to make health care decisions when they lose capacity
- It is cheaper than going through the court of protection once either Tom or Sally loses mental capacity
- Less complex and less time than dealing with COP
8 points
Outline the duties that an attorney would undertake if they agreed to act as an attorney on Tom and Sally’s property and financial affairs LPA
- Make financial decisions on their behalf
- Manage bank accounts and pay bills and taxes
- Open accounts in their name
- Make decisions on property/investments/pensions and state pensions
- Must act in Tom and Sally’s best interest
- Can make gifts that Tom and Sally would typically make to friends and family
- Must apply to COP for large gifts such as education fees
- Must get legal advice if they wish to sell property below market value
- The attorney must not change Tom or Sally’s will
- Must keep their finances separate from Tom and Sally
- Must keep a record of decisions made
Explain to Tom and Sally why thier existing guardianship arrangements for Amelia and Noah may not be sufficient
- Tom and Sally have appointed one gauradian, Sally’s sister
- She might be happy being named gaurdain but is she aware of the responsibilities invovled and that they lay solely with her from a legal aspect
- She may be unable to act as guardian if she become ill, incapacited or pre-decease Tom and Sally. There doesnt appear to be an alternative appointed
- In event there is no willing and able gaurdian decicions regarding welfare Amelia and Noah will be left to the state
- Could mean Tom and Sally’s wishes regarding financial future and welfare for their children are not followed and not with people they would have chosen
- Could cause upset and disagreements with the remaining family
- Be difficult and traumatic for the children at a traumatic time in thier lives
- Risk that they are placed into care whilst a suitable arrangment is arranged
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