What Is The Difference Between Power Of Attorney And Lasting Power?

Power of Attorney and Lasting Power of Attorney are both legal tools that allow a person to give another the legal authority to make decisions on their behalf. They are often used in situations where a person, known as the donor, is unable to make decisions due to loss of mental capacity.

These decisions can range from managing financial affairs and property to making important decisions about health and welfare.

Reading this article will aid in understanding:

• The importance of the topic: Understanding the difference between Power of Attorney and Lasting Power of Attorney is crucial for planning for the future, especially when one cannot make decisions for themselves.
• The key learning outcomes: After reading this article, you will understand the basics and functions of both Power of Attorney and Lasting Power of Attorney, their scope and significance, and the key differences between them.
• The main topics covered: The article covers the basics of Power of Attorney and Lasting Power of Attorney, their differences, and their applications.
• The benefits: Understanding these topics will help you make informed decisions about your future and ensure your wishes are respected even when you cannot express them.
• Actions to take post-reading: After understanding the differences, you can seek legal advice to decide which of the two is more suitable for your needs.

What Is the Difference Between Power of Attorney and Lasting Power?

Power of Attorney and Lasting Power of Attorney has the same basic function: giving legal authority to another person to make decisions on your behalf. However, their scope and duration differ significantly.

Power of Attorney is generally temporary and often used when the donor cannot act independently due to physical absence or temporary incapacity. On the other hand, Lasting Power of Attorney is used when the donor loses the mental capacity to make their own decisions.

A lasting Power of Attorney (LPA) is more durable than a Power of Attorney (POA). Once a person loses mental capacity, a POA usually ceases to be effective.

However, an LPA continues to be valid. An LPA needs to be registered with the Office of the Public Guardian before it can be used, and this can be done anytime after its creation, not necessarily when the donor loses mental capacity.

Understanding Power of Attorney: Basics and Functions

Power of Attorney is a legal document allowing the donor to appoint one or more attorneys to manage their affairs. It is often used in situations where the donor is unable to handle their affairs due to physical absence or temporary incapacity.

A Power of Attorney can be for a fixed period or revoked at any time by the donor, as long as they have the mental capacity to do so.

The functions of the attorney under a Power of Attorney can be broad or narrow, depending on the terms of the document.

They can include making decisions about the donor’s property, bank accounts, and other financial matters. However, a Power of Attorney is generally not used to decide the donor’s welfare or medical treatment.

Exploring Lasting Power of Attorney: Scope and Significance

A Lasting Power of Attorney goes further than a regular Power of Attorney. It allows the donor to give the attorney the power to decide on their behalf, even after losing mental capacity.

It is, therefore, a crucial tool for planning for the future, especially in cases where the donor has a progressive illness that will likely lead to loss of mental capacity.

Two types of Lasting Power of Attorney exist property and financial affairs and health and welfare decisions. The first type allows the attorney to decide about the donor’s property and financial matters.

In contrast, the second type allows the attorney to determine the donor’s daily routine, medical care, and life-sustaining treatment. Both types must be registered with the Office of the Public Guardian before use.

Steps You Can Take to Navigate Power of Attorney and Lasting Power

Deciding between Power of Attorney and Lasting Power of Attorney requires understanding the differences and implications of each. These steps will guide you through the process, helping you make an informed decision.

Each step focuses on a different aspect of these two legal tools, providing a clear path towards making the right choice for your situation.

Understanding the differences between Power of Attorney and Lasting Power of Attorney is crucial, but knowing how to navigate these differences is equally important. Follow these steps to ensure your decisions align with your needs and desires, providing peace of mind for you and your loved ones.

Step 1: Understand the Basics

Start by clearly explaining what Power of Attorney and Lasting Power of Attorney are, their functions, and their significance. Learn about the roles and responsibilities of the attorney in each case. Understand how these legal tools can help manage your affairs, especially when you cannot do so yourself.

Knowing the basics will provide a solid foundation for making an informed decision. It will also help you understand the later steps better. Remember to take note of key terms and concepts as you learn about these legal tools.

Step 2: Assess Your Needs

Once you understand Power of Attorney and Lasting Power of Attorney, assess your needs. Consider your health, your financial situation, and your wishes. Do you have a progressive illness that might lead to loss of mental capacity? Do you often travel away from home, leaving you unable to manage your affairs?

Your needs will determine which of the two is more suitable for you. For example, a Power of Attorney might be sufficient if you need someone to manage your affairs while you’re away. But a Lasting Power of Attorney would be more appropriate if you’re planning for a time when you might lose mental capacity.

Step 3: Seek Legal Advice

Legal matters can be complex, so seeking legal advice is always good. Solicitors can explain the implications of each choice and guide you through creating a Power of Attorney or Lasting Power of Attorney.

They can help you understand the legal language and ensure your documents align with your wishes.

Legal advice can also help you understand potential legal obligations as a donor. It can give you peace of mind, knowing that you’ve made an informed decision and that your affairs will be managed according to your wishes.

Key Differences in Terms of Duration and Capacity

One primary difference between Power of Attorney and Lasting Power of Attorney lies in the duration and capacity of each. Power of Attorney, whether it’s a general power or a limited power, is usually temporary.

It serves its purpose during a specified period or until the donor revokes it. However, the Power of Attorney becomes invalid if the donor loses mental capacity.

On the contrary, a Lasting Power of Attorney is enduring. It continues even if the donor loses mental capacity.

This quality makes it a valuable tool for individuals who anticipate a decline in their mental health, perhaps due to old age or a medical condition like dementia. Knowing that their affairs will be in trusted hands provides peace of mind.

Appointing a Donee: Power of Attorney vs Lasting Power of Attorney

The process of appointing a donee, or an attorney, varies between Power of Attorney and Lasting Power of Attorney. In a Power of Attorney, the donor can nominate an attorney to act on their behalf regarding specific affairs. It can be a family member, a trusted friend, or a professional like a solicitor.

For a Lasting Power of Attorney, the process is more complex. The donor can designate one or more attorneys. There is also the option to appoint a replacement attorney if the original attorney can no longer perform his duties.

A certificate provider who confirms that the donor understands what they’re agreeing to must witness the process. The Lasting Power of Attorney takes effect after registration with the Office of the Public Guardian.

Decision-Making Authority: Comparing Both Powers

The decision-making authority granted under a Power of Attorney and a Lasting Power of Attorney can differ considerably.

A Power of Attorney can be quite broad, allowing the attorney to decide about the donor’s financial matters, bank accounts, and commercial property. However, it does not usually extend to the donor’s personal welfare decisions.

In contrast, a Lasting Power of Attorney can grant decision-making authority in two distinct areas: property and financial affairs and health and welfare. The first gives the attorney the authority to decide about the donor’s property and financial matters.

The second allows the attorney to make decisions about the donor’s daily routine, medical treatment, and even life-sustaining treatment if the donor has specifically given them this authority within the LPA document.

UK Studies Highlighting the Use of Power of Attorney and Lasting Power of Attorney

Recent UK surveys and studies provide insights into the use and understanding of Power of Attorney and Lasting Power of Attorney.

According to a 2019 study by the Solicitors Regulation Authority, there has been a significant increase in the number of Lasting Powers of Attorney registered in the UK, indicating a growing awareness of the importance of planning for future incapacity.

A 2018 Office of the Public Guardian survey found that 45% of respondents had not heard of Lasting Power of Attorney.

However, after learning about it, 72% stated they would consider setting one up. This suggests a gap in public knowledge about these important legal services, highlighting the need for better education and awareness.

These studies underscore the importance of understanding the differences between Power of Attorney and Lasting Power of Attorney. Both legal tools can offer peace of mind and ensure the proper handling of financial or health-related affairs when someone cannot make decisions on their behalf.

A Case Study on Choosing Between Power of Attorney and Lasting Power

Let’s consider a real-life example to bring the topic of “What is the difference between power of attorney and lasting power?” to life. This case study will provide a practical perspective on how an individual might deal with this topic in a UK context.

It’s hoped that readers will find this example relatable and helpful in understanding the differences between Power of Attorney and Lasting Power of Attorney.

Meet John, a 70-year-old retiree living in Manchester. John was in good health and had a clear mind, but he knew this might not always be true.

He wanted to ensure his affairs were in order if he ever lost mental capacity due to illness or injury. John had heard of both Power of Attorney and Lasting Power of Attorney but was unsure about one to choose.

After seeking advice from the Citizens Advice and Law Society, John set up a Lasting Power of Attorney. He liked the idea of enduring power that would remain valid even if he lost mental capacity.

He also appreciated that he could set up two attorneys for financial and health and welfare decisions.

John’s case shows the importance of understanding the differences between Power of Attorney and Lasting Power of Attorney. By seeking legal advice and considering his needs and future, John made an informed decision that gave him peace of mind.

Key Takeaways and Learnings

The article thoroughly examines the difference between Power of Attorney and Lasting Power of Attorney. Here are the key points we’ve learned:

• Power of Attorney is temporary and invalid if the donor loses mental capacity. It’s commonly used for managing financial affairs when the donor is physically absent or temporarily incapacitated.
• Lasting Power of Attorney is enduring and remains valid even if the donor loses mental capacity. It can cover decisions about financial affairs and personal welfare.
• It’s important to understand your needs when deciding between the two. If you’re planning for a future where you might lose mental capacity, Lasting Power of Attorney might be more suitable.
• Seeking legal advice can help you navigate the complexities of these legal tools. Solicitors can guide you through the process and ensure your wishes are accurately reflected in the documents.
• Research shows a growing awareness of Lasting Power of Attorney. However, there’s still a need for better education and awareness to ensure people make informed decisions.

In summarising, understanding the differences between Power of Attorney and Lasting Power of Attorney is crucial for planning for a future where one may not be able to make decisions for themselves.

Whether it’s managing financial affairs, property, or health and welfare decisions, these legal tools provide a way for individuals to ensure their wishes are respected, giving them and their loved ones peace of mind.

Frequently Asked Questions

To help answer other key questions that a reader might have about Power of Attorney and Lasting Power of Attorney, here are five frequently asked questions:

1. What is a Living Will and how does it relate to Lasting Power of Attorney?

A living will, also known as an advance decision, is a legal document where you can state your wishes for medical treatment if you cannot make these decisions.

It’s different from a Lasting Power of Attorney for health and welfare, as the latter allows you to appoint someone to make medical decisions on your behalf.

2. Can a deputy appointed under the Mental Capacity Act make decisions about property disputes?

A deputy appointed by the Court of Protection under the Mental Capacity Act can make decisions about property and financial affairs, which could include property disputes. However, the deputy’s powers depend on the court’s orders.

3. What is the role of the Office of the Public Guardian in relation to Lasting Power of Attorney?

The Office of the Public Guardian (OPG) is crucial in setting up a Lasting Power of Attorney. The OPG is responsible for registering LPAs, and they can guide the process. They also handle any complaints or concerns about how an attorney carries out their duties.

4. In matters of family law, can a civil partner act as an attorney?

Yes, a civil partner can be appointed as an attorney under both Power of Attorney and Lasting Power of Attorney. However, it’s important to consider the potential complexities of mixing personal relationships with legal responsibilities.

5. How does an Ordinary Power of Attorney differ from a Lasting Power of Attorney?

An Ordinary Power of Attorney is used temporarily, such as when the donor is physically absent or temporarily incapacitated. It ends if the donor loses mental capacity.

On the other hand, a Lasting Power of Attorney continues even if the donor loses mental capacity, making it a more suitable tool for long-term planning.