Replacement Attorneys on a Lasting Power of Attorney

Replacement Attorneys on a Lasting Power of Attorney

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Under an LPA, the donor can name specific replacement attorneys that will step in to act in certain situations. When the replacement attorneys step in will depend on how the original attorneys are appointed. Replacing a sole attorney Replacements attorneys will start acting as soon as the original attorney is no longer able to act (i.e. death, mental incapacity or disclaims). Unless the LPA says otherwise, the replacement attorneys will act jointly. Replacing attorneys acting jointly Replacement attorneys will step in to act as soon as one original attorney is no longer able to act. The remaining original attorneys will no longer be able to act. If multiple replacement attorneys are appointed, they will also act jointly, unless the LPA states otherwise. Replacing attorneys acting jointly and severally Replacement attorneys will step in as soon as one original attorney is no longer able to act. The replacement attorneys will act…

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Advance Decisions and Health and Welfare LPAs

Advance Decisions and Health and Welfare LPAs

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An advance decision is a decision made by a person refusing consent to the giving or continuing of certain medical treatments. This statement is made whilst they have mental capacity, in anticipation of a time in the future when they no longer have capacity. Advance decisions are also commonly referred to as an advance decision to refuse treatment, a living will or an advance directive. As they deal with medical treatment after a person has lost capacity, there is overlap between them and a health and welfare LPA. The exact relationship between the two documents depends on which document was created first. If an advance decision is created after a health and welfare LPA, attorneys cannot consent to any treatment refused in the advance directive. Being the later document, the advance decision will overrule authority granted to the attorneys over those specific decisions. If a health and welfare LPA is…

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LPA’s – Instructions and Preferences

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In Lasting Power of Attorney documents, the donor can choose to place rules or guidance within the documents themselves to state exactly how they would like the attorneys to approach certain decisions should they lose the capacity to make decisions for themselves. This can be achieved on Section 7, Page 8 of each type of LPA under Instructions and Preferences. Placing a preference into an LPA is a non-binding wish that the attorneys may consider when making decisions on behalf of the donor. An example of this could be; ‘I would like to donate £2 a month to Cancer Research UK’. When the attorneys are making any decisions regarding any preferences specified in the LPAs, they must consider if this is how the donor would act, and if this is in the best interest of the donor. If the attorneys deem such a decision is not in the best interest…

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Attorneys making gifts under an LPA

Attorneys making gifts under an LPA

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Subject to instructions saying otherwise, attorneys of a Property and Affairs Lasting Power of Attorney have a power to make the following gifts: Gifts to charities that the donor may have given to; and Gifts to family members, friends or acquaintances of the donor on ‘customary occasions’ A customary occasion for this purpose means occasions where is it usual for gifts to be given, for example a birth, a birthday, a wedding/civil partnership, an anniversary or religious holidays. Any gifts made by attorneys must be reasonable in regards to the size of the donor’s estate and their expected current and future needs. The type of gifts the donor used to make when they had capacity should also be considered although just because a donor used to make generous gifts, it does not mean that it would be reasonable for the attorneys to make similar sized gifts, for example if care…

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Discretionary Fund Management

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Following guidance and suggested wording issued by the Office of the Public Guardian with regards to Discretionary Fund Management (DFM), we looked at this in great detail and continued to review the situation. WillPack along with a number of other organisations took the decision not include the instruction due to uncertainty around the issue. Having taken further legal and professional advice after talking to a number of our IFA’s, we will now be issuing a new LPA instruction form to include the DFM instruction as a yes or no option. However, caution will need to be taken as The Office of the Public Guardian cannot guarantee that the bank/ organisation will accept the suggested wording and it is advisable that the donor contacts the bank/ discretionary investment manager to confirm in writing that they will accept the wording; or they seek their own legal advice as appropriate before the LPA…

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Power of Attorney

Common Errors in the Signing of Lasting Powers of Attorney

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As an important legal document, a Lasting Power of Attorney needs to be legible and the Office of the Public Guardian will reject any documents that do not meet their standards. Some common errors are detailed below: Dates The dating of a Lasting Power of Attorney is extremely important and the Office of the Public Guardian require these documents to be signed and dated in a precise order (please see our Signing Guidance). Any ambiguity in the dates will cause the Lasting Power of Attorney to be rejected. Please take the time to slowly and carefully write the date in the appropriate boxes (with one digit per box). Common errors are 5s that look like 8s, 0s looking like 6s or 9s, and 7s that look like 9s. It is also important to note that you should not overwrite the date if a mistake is made. Additionally, a number of…

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Revocation a Lasting Power of Attorney or an Enduring Power of Attorney

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Occasionally, a donor may review their Lasting Power of Attorney or Enduring Power of Attorney and realise that their circumstances have changed since the documents were signed, and will therefore wish to change them. To achieve this, these documents would need formal revocation. With an Enduring Power of Attorney, the process is simple. As the document will not have been registered previously, the Office of the Public Guardian’s guidance states that a Deed of Revocation is required. This Deed will require the details of themselves and all the attorneys appointed. This includes full names and addresses. The Deed will also need to specify the date the donor granted Power of Attorney to the attorneys, i.e. the date signed. This will need to be signed and dated by the client and then witnessed by an individual independent from the Enduring Power of Attorney and kept with the Enduring Power of Attorney….

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Power of Attorney

Certificate Providers

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Certificate Providers A Certificate Provider is an independent person who signs a Lasting Power of Attorney (LPA) to certify that at the time of signing, they are aware that the donor understands the purpose and scope of authority given by the LPA, that no fraud or undue pressure is used to influence the donor into making the LPA and that there is nothing else which could prevent the LPA from being created. Certificate Providers must either be a person who the donor has known for at least two years as more than an acquaintance (for example a friend or colleague), or a person with relevant professional skills (such as a medical professional, social worker or legal professional). The Office of the Public Guardian’s official guidance provides a number of persons who cannot act as Certificate Provider: an attorney or replacement attorney in the current LPA or another other LPA or…

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Signing a Lasting Power of Attorney

Signing a Lasting Power of Attorney

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Signing a Lasting Power of Attorney In order for a Lasting Power of Attorney to be completed correctly it must be signed and dated in a certain order, with any deviation risking it being returned from the Office of the Public Guardian unregistered. As the Office of the Public Guardian can take up to 16 weeks to register a Lasting Power of Attorney, following these steps will help keep the waiting time to a minimum. Section 5—Life-sustaining treatment Only applicable to Health and Welfare Lasting Powers of Attorney. This page must be signed, dated and witnessed at the same time as Section 9 (detailed below). It should be noted that only one box needs to be signed. Any errors on this page will result in Option B (not giving authority for life-sustaining treatment) being the default. Section 9—Signature: donor This page, and any appropriate continuation sheets, must be signed and…

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