Power of Attorney

Making Decisions On Another’s Behalf

Power of attorney, in essence, describes a document which grants another individual (known as the donee) the legal ability to act on a specific person’s behalf on a range of matters, either in general or for a specific purpose. As an example, it may allow someone to handle your finances or act as a signatory for certain documents when you will not be available to do so for a period of time. Alternatively, if you are unable for whatever reason to handle certain everyday tasks, you may need to grant certain rights to another person in order for them to do so on your behalf.

However, giving someone power of attorney only permits them to act on the donor’s behalf when they are considered mentally capable of making their own choices – the power of attorney would be automatically revoked if they should end up in a situation where they can not. It is to this end that other documents exist allowing a donor to elect an individual to act for them should they end up in a state where they are not able to make decisions and act for themselves.

Originally, this came in the guise of an Enduring Power of Attorney (EPA), permitting another person to act on your behalf if you should lose your mental faculties. However, it is no longer possible to create new EPAs since October 1st 2007, though any which were created before that date are still valid.

Replacing EPAs are the new Lasting Powers of Attorney (LPAs), which serve much the same purpose as EPAs, albeit with more flexibility. They still allow you to select an attorney who can act for you if you lose mental capacity, but they have been improved in order to grant a wider variety of powers which they can wield, as well as allowing you to decide which aspects of your life you wish to grant them legal jurisdiction over.

There are two types of Lasting Power of Attorney to reflect this more flexible approach.

Firstly, the Property and Affairs Lasting Power of Attorney gives you the ability to choose someone who you would like to entrust with the responsibility of handling your money and financial affairs, giving them control over your property, savings, etc. This can only be used if it has been registered with the Court of Protection.

Secondly, the Personal Welfare Lasting Power of Attorney allows another person to make decisions on your health, treatment and welfare should you end up in a state where you are not able to have a say on it yourself. It allows them to consent to or refuse medical treatment you may receive as well as making a decision on your living situation and the like. Unlike the Property and Affairs LPA, the Personal Welfare LPA will only be usable by the Attorney once you are no longer capable of making these choices yourself.

It is important to draw a distinction between the Personal Welfare Lasting Power of Attorney and the document known as a Living Will, as they may at first glance seem similar. What separates them is the fact that a Living Will directs others to act according to the wishes you expressed while still able to make your own decisions – your choices ahead of time will determine any treatment you will or will not receive in anticipation of situations that could arise in your future. They are not, however, legally enforceable. With the Personal Welfare LPA, you instead place the decision in the hands of another person, who will decide as the situation arises what should be done, based on what they feel would be best for you and they are legally enforceable

There are benefits and downsides to both of these approaches. A Living Will allows you to set out your treatment in the future in no uncertain terms, ensuring that you will not be treated in a fashion you would not have approved of due to another person’s resolve wavering or for any other reason. On the other hand, the Personal Welfare LPA grants greater flexibility, making it a better choice for dealing with situations you may not have anticipated, so, if there is someone in whom you place absolute faith to understand your feelings and act as you would have desired, this may be a superior document.

If you fear that you may be mistreated under an LPA, you should note that it is a legal requirement for the attorney to act in your best interests at all times with the decisions they make.

Planning for the future can seem intimidating, but granting power to a donee, or several donees, through an LPA can ensure rosy treatment. Anyone over the age of 18 is able to make an LPA, though it has to be registered with the Office of the Public Guardian in order for it to be used.

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