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Lasting powers of attorney - archive version

7 June 2016

This practice note has been archived as the advice is no longer current. You can access the latest version of this practice note from the link on the right side of this page.

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Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

SRA principles

There are 10 mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.

Terminology

  • Must: a specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

  • Should: outside of a regulatory context, good practice for most situations in the Law Society's view.

     In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client.

However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

Contents

  1. Introduction
    1. Who should read this practice note?
    2. What are the issues?
     
  2. Powers of Attorney
    1. Lasting powers of attorney
    2. Enduring powers of attorney
    3. Ordinary powers of attorney
     
  3. The donor's capacity
    1. Assessing capacity
    2. Where there is doubt about a donor's capacity
    3. Incapacity: the functional and time-specific test
    4. Acting in the donor's best interests
     
  4. Risk of abuse
    1. Deputyships
     
  5. Taking instructions for an LPA
    1. Verifying instructions
    2. Duty to the donor
     
  6. Drafting the LPA
    1. Choice of attorney(s)
    2. More than one attorney
    3. Guidance, restrictions and conditions
     
  7. Certificate providers
    1. Providing a certificate as a professional
    2. Providing a certificate as a 'non-professional'
     
  8. Registering the LPA
    1. Time limits for registration
    2. Notifying named persons of an application to register an LPA
    3. Verifying the registration
    4. The LPA register and disclosure of information
     
  9. Attorneys
    1. Duties and responsibilities of attorneys
    2. Delegation by the attorney
    3. Replacement attorney
    4. Solicitor-attorneys and costs
    5. Disclaiming an appointment
    6. Retirement as attorney
     
  10. Property and financial affairs LPAs
    1. Limiting the LPA
    2. Gifts
    3. Investment business
    4. Trusteeships held by the donor
    5. Disclosure of the donor's will
    6. Money laundering
    7. Statutory wills
     
  11. Health and welfare LPAs
    1. Scope
    2. Life-sustaining treatment
    3. Relationship with advance decisions and advance statements
     
  12. Using the prescribed LPA forms
  13. Executing the LPA
    1. Witnesses
     
  14. Relationship between the different types of LPA  
  15. Reporting suspected abuse of an LPA
  16. Enduring Powers of Attorney
    1. Duties under an EPA
    2. Solicitors acting as an EPA attorney
    3. Acting in the donor's best interests
    4. EPA Register
     
  17. Further information
    1. References
      1. Legislation
      2. Guidance
      3. Cases
      4. Websites and publications
       
    2. Further products and support
      1. Practice Advice
      2. Professional Ethics Helpline
      3. Other Law Society practice notes
       
    3. Acknowledgements
     

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