Powers of attorney Flashcards
Two forms of lasting power of attorney and what they do
Financial decisions LPA - power to make decisions about donors property and financial affairs
Health and care decisions LPA - power to make decisions about healthcare and personal welfare
Someone now has no ability to communicate who has no freinds or family. Who can be appointed to deal and represent with her medical decisions and long term care?
The Independent Mental Capacity Advocate
If someone can’t make decisions for themselves who would have power to do so
A deputy appointed by the Court of Protection
A POA is automatically revoked if the donor :
Dies
Loses mental capacity
Becomes bankrupt
An LPA will be revoked automatically if
Death of the sole remaining attorney
Bankruptcy of the attorney or the donor’s bankruptcy (although this would not affect the welfare part)
Dissolution of marriage between donor and attorney Incapacity of the attorney
The death of the donor since their affairs will then be taken over by their executors or administrators
Jointly / jointly and severally meaning
Jointly - attorneys can only act if they’re in agreement. Must sign paperwork if needed. They must all agree.
Jointly and severally - attorneys can make decisions together or act by themselves. More flexible and can get it done when you need to.
Deputyship order
Set up after mental capacity is lost
Deputy appointed by the COP
Deputy can only act within the terms of the deputy ship order
The deputy must complete annnual report the OPG
Much more expensive
Process of setting up a LPA
Complete the LPA form
Submit to office of public guardian for registration
Form must be signed by donor, attorney, certificate provider and witnessed by someone independent
Payment of registration fee - £82
Duties of an attorney or deputy
Follow five principles of the MCA 2005
Consider what donor has done in the past
Apply a high standard of care
Keep individuals assets seperate from their own
Keep financial records
Keep the donors affairs confidential
Ensure no conflict of interest
Powers of attorney can act…
Can do anything donor would have done themselves in relation to their financial affairs
Can maintain the donor, their spouse or child under 18
Only have limited powers to make gifts - seasonal gifts (birthdays etc)
Can make payments to trust funds
Cannot gift the donors property await to avoid paying care home fees
Revoking an LPA
Donor can revoke LPA at anytime when they have mental capacity
Can be revoked by the OPG if abuse by attorney
Automatically revoked if:
Donor dies
Death of sole remaining attorney
Bankruptcy of attorney/donor
Dissolution of marriage of donor/attorney
Enduring power of attorney
No longer available
Cannot be used for health/personal welfar
Can act before it’s registered
If attorney believed donor was becoming mentally incapable it’d be registered
General/ordinary power of attorney
Deed executed by a donor that gives attorney power to act on donors behalf
Must be signed by donor and witnessed by one person
Attorney CANNOT make health/welfare decisions
Revoked if donor loses mental capacity
Doesn’t need to be registered or a set form
A general power of attorney
A deed executed by a donor that gives another person power to act on the donors behalf
Must be signed and witnessed by at least another person
Can be made for a specific matter
Usually lasts for a fixed period
Does NOT a permit attorney to make health/welfar decisions
Can sign legal documents but cannot make a Will
Requirements for LPA to be valid
Donor and attorney must be over 18 and not bankrupt
The LPA must be in prescribed for
Must state they understand duties
Certificate from prescribed person saying no fraud or undue pressure
