The history of power of attorney includes the old enduring power attorney and now the new lasting power of attorney. The old EPA or enduring power of attorney came into force from 1986 until 2007, and it could be used for property and finance but at that time not for health and welfare. It could be used without registration whilst the donor had mental capacity power of attorney and of course was open to abuse. This area was then transformed when the lasting power of attorney came into effect in 2007 through the Mental Capacity Act 2005. The new LPA's replaced the old EPA's and can be used to make arrangements to make decisions on the donors behalf, that is the person making the document.
There are now two types of Power of Attorney, property and finance and health and welfare. Within the new LPA's you can limit the powers that an attorney has and there are certain key questions that need to be addressed, not least in the new health and welfare power of attorney whether the attorneys can or cannot make decisions about life sustaining treatments. The documents main use is to assist a person to nominate people they trust to help them in dealing with not only their financial affairs but also their health and welfare.
The new system is administered by the Office of the Public Guardian based in Birmingham which is an agency of the Ministry of Justice. It was set up under the Mental Capacity Act 2005 and replaced the Public Guardianship office. It provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions and to allow people to plan ahead of time prior to losing capacity. If medical capacity is lost the person can no longer apply for the Lasting Power of Attorney in Bristol, the documents must be completed whilst the person has the necessary mental capacity. As an additional safeguard, if there are suspicions that an attorney is not acting in the best interest of the donor the Office of the Public Guardian will arrange investigation and if necessary they can revoke the powers. Ultimately disputes can be sent to the Court of protection which is part of the family division.
The five key principles set out under the Mental Capacity Act 2005 are as follows. The person must be assumed to have mental capacity unless it is established that he lacks capacity, a person is not to be treated as unable to make a decision unless practical steps to help him are made, a person is not to be treated as unable to make decisions simply because he makes an unwise one, and any act by an attorney must be done in the best interests of the donor, and finally before any act is done, can it be effectively achieved in a way that is less restrictive of the donor's right.
Before lasting the power of attorney in Bristol can be used it must be registered and the Office of the Public Guardian will take between eight and ten weeks to process an application, during this time the document cannot be used. Once the Office of the Public Guardian grant the application, a certificate is released and the attorneys can then act for the donor.
Rose & Trust have considerable experience in preparing Lasting Power of Attorney Bristol. Contact us on 0117 369 1969 to find out more or visit our website at www.rosetrust.co.uk.