Power of Attorney and Living Will FAQs

What is the difference between a LivingWill/Advance Medical Decision and an ordinary will (or Last Will & Testament)?
A Living Will/Advance Medical Decision is only concerned with medical treatment when you're still alive. You cannot use it to communicate your wishes on any matters normally dealt with by an ordinary will, or Last Will & Testament. In other words, you cannot use it to determine who will inherit your property when you die, who will be your executors, or who will be guardians to your children.
What is the difference between a Living Will and a Lasting Power of Attorney Health and Welfare?
With a Living Will (also known as an 'Advance Decision') you can specify in advance that you don't wish to receive specified medical treatments in certain circumstances. So Living Wills are a means of refusing treatment.

A Lasting Power of Attorney Health and Welfare (LPA HW), on the other hand, lets you give a much more general authority to a relative or close friend (known in power of attorney terms as the 'Attorney') to make decisions regarding your personal welfare and so either consent to or refuse treatments on your behalf.

It's possible to have both a Living Will and a Lasting Power of Attorney Health and Welfare. But it's important to note that:

·If a Living Will is made after an LPA HW and the Living Will covers the same treatment as the LPA HW, the Attorney of the LPA HW cannot consent on your behalf to treatment specified in the Living Will. ·An LPA HW created after a Living Will that covers the same treatment as the Living Will will cause the Living Will to be invalid.
What is an Advance Medical Decision?
An Advance Medical Decision is also known as a 'Living Will' in England & Wales.

An Advance Decision is a form you can use to communicate in advance your wish to refuse any medical treatment you might receive now or in the future. It can be used to refuse treatment you object to on religious grounds or for any other reason, and can be used to refuse treatment that is necessary to save your life ('life-sustaining treatment').

An Advance Medical Decision applies only to the provision of health care to you. It cannot be used to make other decisions, such as in relation to your financial matters (including how any care should be paid for).
What is a Living Will?
A Living Will is an advance declaration of your wishes about medical treatments which you could be given for any future illness, which you may not be able to communicate yourself at the relevant time because of physical or mental incapacity.

Living Wills are valid in England & Wales and Scotland, but in England & Wales they are also known as 'Advance Decisions'.

With a Living Will, only refusals of medical treatments or procedures will be binding on medical staff. Requests for special treatments (other than pain management and basic nursing) may have persuasive force, but doctors will not have to follow your instructions.

With a Living Will, you can also appoint someone whom doctors may consult on health care matters for you; this person is referred to as a Health Care Proxy. You should discuss the options in this Living Will with your family and doctor before completing it.
In a Power of Attorney what authority does an Attorney have?
In a Lasting Power of Attorney Property and Financial Affairs (LPA PFA) the relative or close friend you appoint as an Attorney can make decisions on your behalf regarding your property and financial affairs. For example, decisions about selling your home, buying property on your behalf in your name, how your care (including healthcare) should be paid for, and carrying on (or winding up) your business.

In a Lasting Power of Attorney Health and Welfare (LPA HW) the Attorney can make decisions on your behalf regarding your general personal welfare. For example, decisions about where you live, how you're cared for and what healthcare you receive. If the Attorney decides to put you in a nursing home, the decision will be made with a Lasting Power of Attorney Health and Welfare and the payment of the nursing home fees will be made with a Lasting Power of Attorney Property and Financial Affairs.

In a General Power of Attorney (GPA) the Attorney can take decisions and actions on your behalf regarding your property and affairs, but the GPA ceases to be valid if you become mentally capable.

A Scottish Continuing Power of Attorney (CPA) allows the Attorney to act on your behalf and manage your financial interests. In the case of a Scottish Welfare Power of Attorney (WPA), the Attorney can make decisions regarding your welfare when you're incapable of doing so yourself.
Can I get compensation for the work I've done as an Attorney?
Unless it has been agreed with your Attorney, the Attorney isn't entitled to charge for his/her services, although s/he would be entitled to reimbursement for out-of-pocket expenses.

If you do agree to pay the Attorney, you must record this on the power of attorney form.
Who can I choose to be an Attorney?
For both types of Lasting Power of Attorneys the person you choose to look after your affairs (the 'Attorney') must be over 18 and must have capacity to use the power of attorney.

With a Lasting Power of Attorney Property and Financial Affairs (LPA PFA) the Attorney must not be an undischarged bankrupt or an interim bankrupt and if s/he is made bankrupt, s/he will cease to be an Attorney (if s/he is the only Attorney, the Power will be automatically revoked).

There is no restriction on the Attorney of a Lasting Power of Attorney Health and Welfare (LPA HW) being a bankrupt.

With a Scottish Continuing Power of Attorney (CPA) and Welfare Power of Attorney (WPA) an Attorney must be over 18 and not bankrupt
What Powers of Attorney are used in Scotland?
There is no Power of Attorney Form UK. There are three kinds of Scottish Power of Attorney: 'General Power of Attorney', 'Continuing Power of Attorney ' and 'Welfare Power of Attorney '.

General Powers of Attorney (GPAs) are a relatively straightforward authorisation for wide-ranging use for specific periods or events; for example, you might need to create a General Power of Attorney if you go abroad and need to entrust the management of business interests to your spouse. A General Power of Attorney is automatically revoked if you become mentally incapable.

Continuing Powers of Attorney (CPAs) and Welfare Powers of Attorney (WPAs) are rather more complicated to create and administer than General Powers of Attorney because they remain valid in the event of you becoming mentally incapable of handling your own affairs or making decisions with regard to your welfare.

A Continuing Power of Attorney provides a way of allowing there to be long-term control of your interests, albeit in the hands of others, particularly if you're elderly or in poor health and an Attorney will usually be able to use it both before and after you become mentally incapable.

A Welfare Power of Attorney provides a way of allowing you to nominate a person who will be able to make decisions in regard to your welfare only when you become incapable of doing so yourself.
How do I go about registering a Continuing Power of Attorney or Welfare Power of Attorney in Scotland?
After the Continuing Power of Attorney or Welfare Power of Attorney has been signed, a Certificate must be completed and signed by a 'Prescribed Person', who can be either a practising solicitor, a practising member of the Faculty of Advocates or a registered medical practitioner. This Certificate states that the Prescribed Person has interviewed you (the 'Granter') immediately before you subscribed the CPA or WPA and that they are satisfied that at the time the Continuing Power of Attorney or Welfare Power of Attorney is granted you understand its nature and extent and that s/he has no reason to believe that you're acting under undue influence, or that any other factor prevents the granting of the CPA or WPA.

Once the Certificate has been completed, the Application for Registration must be completed, including being signed by the Attorney confirming his/her agreement to act. The Public Guardian will refuse to register a Continuing Power of Attorney or Welfare Power of Attorney without confirmation from the Attorney (within the Application for Registration of the CPA or WPA) that s/he is willing to act as Attorney.

The Application to register the Continuing Power of Attorney or Welfare Power of Attorney must be sent to the Office of the Public Guardian. It's not acceptable to apply by letter. The completed form must be accompanied by the original CPA or WPA with the appropriate Certificate and a cheque for the registration fee, made payable to 'The Scottish Court Service'.
What restrictions can I make to a Continuing Power of Attorney or Welfare Power of Attorney?
When you fill in the form to create a Continuing Power of Attorney or Welfare Power of Attorney, you have the opportunity to restrict the extent of the authority being granted to the Attorney, or to place limitations on their dealing with certain parts of your property or welfare. You may also choose to appoint different Attorneys to deal with different parts of your property.
What kind of authority can I give in a Continuing Power of Attorney or Welfare Power of Attorney?
When you make a Continuing Power of Attorney, you can state what kind of authority the Attorney may have. This would normally be a general authority with wide powers; this means that the Attorney would be able to do anything which you are or were legally able to do.

If you wish to impose any limitations or restrictions, you must do so clearly, such as for a specific or limited authority. If you don't want the CPA to have immediate effect, but want, for example, it to become effective only when you have actually become mentally incapable, that restriction should be clearly stated.

When you make a Welfare Power of Attorney, you give authority to the Attorney to deal with all matters affecting your welfare after you cease to be capable of exercising such authority yourself. Such matters might include medical treatment or the choice of where you live.
Who can make a Continuing Power of Attorney or Welfare Power of Attorney?
Any individual who is aged 18 or over, has sufficient mental capacity and is not an undischarged bankrupt can make a Continuing Power of Attorney or Welfare Power of Attorney. A company or a partnership cannot make a CPA.

Two or more people cannot make a joint CPA or WPA appointing the same Attorney.

To have the mental capacity to make a Continuing Power of Attorney or Welfare Power of Attorney, you must be capable of understanding the nature and effect of the powers granted at the time you make the CPA or WPA.
When does a Continuing Power of Attorney or a Welfare Power of Attorney become effective?
To be effective, the Continuing Power of Attorney or Welfare Power of Attorney must be registered with the Office of the Public Guardian.

The CPA can be used immediately after it has been signed by you (the 'Granter') and registered with the Office of the Public Guardian.

The Attorney must be aware of when the Power of Attorney begins and ends, so that s/he will meet his/her responsibilities and not exceed the authority. Third parties need to know when they can and should reasonably rely upon and deal with the Attorney.

The Welfare Power of Attorney can be used only after you're incapable of acting yourself, notwithstanding that the WPA will have already been registered with the Office of the Public Guardian.
What are the benefits of a Continuing Power of Attorney?
If you became ill or disabled without a Continuing Power of Attorney (CPA) and you couldn't manage your financial affairs yourself, no one could act on your behalf unless they first went to the Sheriff Court for authority to deal with your affairs. Without a Continuing Power of Attorney or court authority even your spouse and children may be powerless to act on your behalf. Although courts will appoint someone to act for you and to protect your interests, this isn't always a desirable alternative for three reasons:

1.Delay. It can take several weeks or even months to have someone appointed who will have the authority to make legal, financial and business decisions on your behalf. With a CPA an Attorney can act for you immediately. The continued control of your interests is thus maintained by someone you have chosen.

2.Selecting an Attorney. If you become ill or disabled, you lose the ability to select your Attorney. The court may or may not grant authority to someone you would have preferred.

3. Advantages of immediate and lasting delegation. From the date on which you sign and register the Continuing Power of Attorney, the Attorney has authority to act on your behalf, unless you have specifically restricted their power.
When should a Lasting Power of Attorney be registered in England and Wales?
A Lasting Power of Attorney must be registered with the Office of the Public Guardian (OPG) before it can be used. You, or one or more of the Attorneys, can register the LPA Form. The Office of the Public Guardian will stamp each page of the LPA Form to show that it has been registered.

The Office of the Public Guardian charge a fee to register the LPA Form, which must be sent along with the application for registration. To find out the current fee, call OPG on 0845 330 2963.

It's not necessary to register a Lasting Power of Attorney immediately after it's created, but it cannot be used in any way before it is (even in the case of a Lasting Power of Attorney Property and Financial Affairs (LPA PFA) that is intended to be used when you have capacity).
Who should sign a Lasting Power of Attorney?
You (the 'Donor') should sign the Power of Attorney in the presence of a witness who must also sign it.

The Attorney(s) must then sign the Power of Attorney form in the presence of a witness who must also sign the form and complete his/her details.

The witness can be anyone except for the person making the Lasting Power of Attorney. It can be another Attorney or replacement Attorney or a certificate provider or a person to be told when the application to register the LPA is made.
Can I revoke a Lasting Power of Attorney?
Both a Lasting Power of Attorney Property and Financial Affairs (LPA PFA) and a Lasting Power of Attorney Health and Welfare (LPA HW) can be revoked at any time by you (the 'Donor'). If you want to do so, consult a solicitor, who will draft a Deed of Revocation for you.

Lasting Powers of Attorneys will be automatically revoked if:

·the Donor becomes bankrupt (applies to Lasting Power of Attorney Property and Financial Affairs only);

·the Attorney dies or becomes bankrupt and there are no other Attorneys (or the Attorneys can only act together) and there is no replacement Attorney;

·the Attorney refuses to act by disclaiming the appointment and there are no other Attorneys (or the Attorneys can only act together) and there is no replacement Attorney;

·the Attorney is married to you (or is your civil partner) and the marriage or civil partnership is ended by divorce or dissolution and there are no other Attorneys (or the Attorneys can only act together) and there is no replacement Attorney. However, the LPA may state that the appointment isn't to cease in this case and so it will not be revoked;

·the Attorney ceases to have capacity to exercise the Power of Attorney and there are no other Attorneys (or the Attorneys can only act together) and there is no replacement Attorney.
How do I use a Lasting Power of Attorney Property and Financial Affairs?
Subject to the conditions and restrictions within it, a Lasting Power of Attorney Property and Financial Affairs (LPA PFA) allows an Attorney to make any of the decisions that you (the 'Donor') could have made in respect of your property and affairs.

The LPA PFA must be registered before it can be used. Once registered, it must be used in accordance with the stated conditions and restrictions. This may include a restriction preventing its use until such time as you lack capacity in respect of the particular matter.

The evidence of the authority given by the Lasting Power of Attorney is the form itself (with the stamp of the Office of the Public Guardian on each page). Copies of the form should be sufficient proof of its existence for most organisations, but some (particularly banks and other financial institutions) may require to see the original or a copy that has been certified by a solicitor.
How long does a General Power of Attorney last for?
If you (the 'Donor') become incapable of making the decisions conferred by the General Power of Attorney, the GPA is automatically annulled. Otherwise, a General Power of Attorney remains valid until it's revoked. GPAs can be revoked orally, but to avoid misunderstanding it's wise to write 'cancelled' on the original Power of Attorney form or simply tear it up.

The General Power of Attorney would also be revoked by the death or bankruptcy of you or the Attorney.
What are the restrictions of a General Power of Attorney?
Once a General Power of Attorney is granted the Attorney has the authority to take decisions and actions on your (the Donor's) behalf regarding your property and affairs, as if you were taking them yourself, except that the Attorney cannot make gifts.

Unlike a Lasting Power of Attorney (LPA), there is no provision for limiting the scope of the Attorney's powers in a GPA; but otherwise the extent and scope of the two are the same.

A General Power of Attorney is very wide-ranging and gives an Attorney a great deal of power (it's possible to give a limited Power of Attorney, but further information should be obtained from a solicitor). In effect, an Attorney can do anything s/he thinks fit in relation to your property and affairs.

However, the GPA doesn't cover functions of yours which relate to certain special personal responsibilities. For example, an Attorney cannot normally perform in your role as a trustee or as a personal representative (i.e. administrator) of someone's estate. An Attorney cannot sign your Last Will & Testament on your behalf, take action concerning your marriage or delegate your Power of Attorney.

It's important to bear in mind that you remain liable for the actions of the Attorney. Clearly, the extent of the GPA is such that it should only be given to somebody you trust implicitly.
What is the difference between a Lasting Power of Attorney and a General Power of Attorney?
A General Power of Attorney (GPA) is a relatively straightforward authorisation for wide-ranging use or for specific periods or events. The need to create a GPA might arise, for example, if you go abroad and need to entrust the management of business interests to your spouse. A General Power of Attorney can only be used to manage or deal with your financial affairs.

Lasting Powers of Attorney (LPAs) are more complicated to create and administer than GPAs because they permit the Attorney to make decisions that you're incapable of making. They require particular procedures and formalities to be followed. A GPA is automatically revoked if you become mentally incapable.
What is a Lasting Power of Attorney?
There are two types of Lasting Power of Attorney.

A Lasting Power of Attorney Property and Financial Affairs (LPA PFA) authorises the Attorney to make decisions concerning your property and affairs or specified matters concerning your property and financial affairs.

A Lasting Power of Attorney Health and Welfare (LPA HW) allows the Attorney to make decisions about matters concerning your health and welfare.

The powers under a LPA PFA extend to all matters concerning your property and affairs; this may include selling your home, buying property for you in your name, decisions about how your care (including healthcare) should be paid for, and carrying on (or winding up) your business.

With a LPA HW the decisions about a person's personal welfare are wide-ranging. They can include decisions about where you live, how you're cared for and what healthcare you receive; this can include specific decisions about treatments or more general decisions.

So a decision to send you to a nursing home and the payment of that home cannot be made with a Lasting Power of Attorney Health and Welfare alone, but with a Lasting Power of Attorney Property and Financial Affairs for the payment, and a Lasting Power of Attorney Health and Welfare for the decision to put you in the home.
What has to be done if the Attorney, under a Lasting Power of Attorney, no longer wishes to act on my behalf?
If the Attorney no longer wishes to be an Attorney, s/he can complete a notice refusing ('disclaiming') to continue to do so. This must be in Form LPA005 and sent to the Office of the Public Guardian.

The Attorney mustn't give up the role of Attorney without informing both you (the 'Donor') and the Court.
Can a Continuing Power of Attorney or Welfare Power of Attorney in Scotland be revoked or terminated?
You can revoke a Continuing Power of Attorney or Welfare Power of Attorney at any time after it has been registered, as long as you're still mentally capable. If you want to do so, you should consult a solicitor to draft a Deed of Revocation.

A Continuing Power of Attorney or Welfare Power of Attorney will be terminated:

·where you and the Attorney are married to each other, upon the granting of a Decree of Separation or divorce to either party or a declarator of nullity of marriage, unless the CPA or WPA states otherwise; or ·on the appointment of a guardian with powers related to those conferred in the CPA or WPA.
How do I use a Lasting Power of Attorney Health and Welfare?
Subject to the conditions and restrictions within it, a Lasting Power of Attorney Health and Welfare (LPA HW) authorises the Attorney to make decisions on behalf of you (the 'Donor') in respect of your personal welfare.

The LPA HW must be registered before it can be used. The Lasting Power of Attorney cannot be used unless (and until) you lack capacity in respect of the particular decision.

The evidence of the authority given by the LPA HW is the Form itself (with the stamp of the Office of the Public Guardian on each page). Copies of the stamped Form should be sufficient proof of its existence for most organisations, but a doctor or social worker may need to see the original or a copy that has been certified by a solicitor.
Does the General Power of Attorney need to be endorsed by a solicitor before it can be used?
No. Once completed correctly, signed and witnessed, our General Power of Attorney is valid and in force. It doesn't need countersigning or endorsing by a solicitor. Lawpack's General Power of Attorney should be recognised by banks, investment companies, etc. However, bear in mind that different organisations will have different requirements and procedures, so contact them first to find out what they are. Some will be satisfied with a copy of the General Power of Attorney. Others will want to see the original or a 'certified copy' of the General Power of Attorney. (A certified copy is a copy that has a form of words written on it certifying that the copy is a true copy of the original and is signed by a solicitor. The solicitor will have to see the original and the copy in order to sign this.)
What is a deed of revocation?
A deed of revocation revokes or cancels a power of attorney.

BUSINESS ARTICLES

Dear Customer, Thank you for purchasing our paper products. Updates & Downloads for our paper DIY Kits To access the downloadable forms and legal updates relevant to the paper DIY Kit you have purchased, please click on the appropriate product link...

Category: Updates and downloads

Established in 1993, Lawpack is the UK’s leading provider of legal forms and DIY legal kits. We also produce a range of legal guides and have just launched our new legal services, which can help you to write a Will...

Category: Uncategorized

What is a company resolution? A company resolution is an official record of the decision of the directors or members of a company. Once a resolution is passed, the company is bound by it. If a majority is not reached...

Category: Company management articles

Poor health and safety can leads to illness and accidents, and significant costs for your business. Employers who take their responsibilities seriously and follow the correct health and safety procedures improve the productivity of their businesses and increase their reputation...

Category: Employment contract articles