Archive for October, 2009
October 31st, 2009 | 
Author: The Lasting Power of Attorney was introduced by The Mental Capacity Act 2005 and came into effect on the 1st October 2007. It replaces the Enduring Power of Attorney although EPA’s made prior to the 1st October 2007 will continue to be valid. You may make two types of LPA – the Property and affairs LPA and the Welfare LPA. As the name suggests, the Property and Affairs LPA deals with financial matters whereas the Welfare LPA covers personal and healthcare decisions.
Choice of Attorney
The person making the LPA (the Donor) should appoint an Attorney they trust and in whom they have complete confidence. The Attorney must be over 18 and must not be an un-discharged or interim bankrupt person. More than one Attorney can be appointed to act either together, independently or together in respect of some matters and independently in respect of others. If the LPA is silent on how two or more Attorneys are to act they must act together. Under LPA’s it is possible for the person making the LPA to appoint a replacement Attorney.
Role of Attorney
An Attorney’s role to make all the decisions (subject to any restrictions or conditions contained in the LPA) that the Donor would have made himself and in reaching these decisions the Attorney must comply with The Mental Capacity Act 2005 and the Code of Practice. Under a Property and Affairs LPA the Attorney will commonly be able to pay bills and expenses, collect income and benefits, manage Bank and Building Society Accounts, buy and sell property, complete and submit Tax Returns and make gifts within the statutory limits. Under a Welfare LPA the Attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment and may even be able to consent to or refuse life sustaining treatment on behalf of the person that has made the LPA. The Attorney may also be able to decide whether the Donor remains in his own home or moves into residential or nursing care and also more day to day decisions such as the Donor’s diet, dress or daily routine. LPA’s can be restricted or contain conditions limiting the Attorney’s authority. The Donor can also, if he wishes, include guidance for the Attorney in the LPA. This guidance is not legally binding but could be invaluable to the Attorney.
The Certificate Provider
Not only must LPA’s be signed by the Donor and Attorneys and witnessed, a Certificate must also be given by a third party, the “Certificate Provider”. A Certificate Provider is an independent person chosen by the Donor to complete a Certificate contained in the LPA to confirm that in his or her opinion the Donor:-
understands the purpose and content of the LPA; understands the extent of the powers he is giving to the Attorney; is not being pressurised, tricked or placed under duress by a third party to make the LPA; and that there is nothing else that would prevent the LPA being created.
The Certificate is vital and without it the LPA is invalid and cannot be registered. The Certificate Provider can either be someone who knows the Donor personally and has done so for at least two years or a person with the relevant professional skills and expertise to certify the LPA eg. a Solicitor, Barrister, Doctor or Social Worker.
Registering the LPA
An LPA, whether it is a Property and Affairs LPA or a Welfare LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. The registration fee is £150 and the registration process is likely to take between 6 and 8 weeks. Once registered, a Property and Affairs LPA can be used immediately but a Welfare LPA can only be used once it is registered and the Donor has lost his mental capacity to make decisions. When making the LPA the Donor can nominate up to 5 people to be notified of the application to register. Those notified will have an opportunity to object to registration if they have concerns for example regarding the integrity of the Attorney. It is not a requirement that persons are nominated but it is advisable. A registered LPA will be added to the OPG database and searches can be made by third parties to see whether an LPA is in existence.
Revoking an LPA
An LPA can be revoked by the Donor at any time provided he has mental capacity. The Attorney can also disclaim the appointment. There are also circumstances when an LPA will be revoked. These are:-
when the sole Attorney dies or is made bankrupt. If two or more Attorneys are appointed, the appointment of the surviving or non bankrupt Attorney will continue; when the Donor dies; when the Donor is made bankrupt (NB this rule does not apply to a Welfare LPA); when the Attorney is a spouse or civil partner and the marriage ends in divorce or the civil partnership is dissolved. The LPA may, however, specify that the appointment continues notwithstanding such divorce or dissolution.
However, a decision to give someone authority to manage your financial affairs is not one that should be entered into lightly.
It is therefore advisable to consult a Solicitor who is a Registered Trust and Estate Practitioner with considerable experience of dealing with these types of matters if you are considering granting a Lasting Power of Attorney.
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Family law attorney Brooklyn matters represent a sizable chunk of any jurisdiction’s docket and can be among the most emotionally charged matters seen in court.
Family law attorney Brooklyn deals with family related issues and domestic relations, including marriage, divorce, paternity, child and spousal support, child custody, adoption, long-term care for elderly parents, civil unions and other related matters.
Divorce and child custody cases make up the vast majority of family law cases. Family law requires that a divorce must be certified by the court system to become effective. The terms of the divorce are usually determined by a family law court, and may take into account prenuptial agreements or postnuptial agreements. A contested divorce may be stressful to the spouses and lead to expensive litigation in family law courts regarding issues such as child custody, spousal and child support and property division. Less adversarial approaches to divorce settlements have recently emerged in the practice of family law, such as mediation and collaborative divorce, which use a cooperative process and sometimes a single attorney working for both parties to come to an agreement.
Adoption makes up a smaller, but significant area of family law attorney Brooklyn. In adoption, some or all of the rights of the original parents are terminated, and the adopting family gains these rights in family law court. Family law attorneys in these cases handle negotiations with birth parents or the state, and finalize any agreements among the parties.
Paternity is yet another area of family law. Paternity cases determine the biological parents of a child and establish these parents’ rights and responsibilities with regard to the child. As traditional marriage becomes less common, paternity suits and related child support and custody cases are on the rise.
Civil union litigation are an emerging area of family law, as traditional marriage has been joined by civil unions as a legal option. Family law litigation that may arise related to civil unions include the dissolution of civil unions, adoption and child custody issues and property and legacy issues.
If you need to hire a Tampa criminal attorney then you will probably need to do so as soon as possible so they can begin building your defense case. In most cases, people on criminal charges will look to hire a private criminal attorney to represent them in court. If you have previous criminal convictions or have been in court on criminal charges before, then you may wish to use the same attorney, otherwise you will need to carry out some research and find an attorney suitable to represent you.
There are several options available to you when it comes to finding a Tampa criminal attorney. You should remember though that you need to hire an attorney who practices within the state in which the crime was committed and where the case the will be heard. This is because each state in the United States will make there own laws with regard to criminal acts. Hiring an attorney who works within that state means they will have the expert knowledge and experience of local law required to defend you.
One of the best ways of finding a suitable attorney is by asking for recommendations from friends and family. Of course they may not want to discuss why they had need for an attorney, nor you with them, so ask a few discreet questions in order to get contact details. Getting recommendations from past clients is always a good indicator that an attorney is good at their job and could be suitable for your case.
The internet also provides a means by which to find criminal attorney’s in your area. There are many legal directory websites where you can perform a simple search to return a list of criminal attorney’s whom you may want to contact. Some websites will offer detailed profiles on attorneys in the area, whilst others will simply provide contact details and links to the attorney’s website if they have one. Not every attorney will be on every site so check out two or three directories for the best results.
You can also look locally by checking out advertisements in local newspapers and publications, as well as the more traditional local directories. Whilst these adverts often only give contact details, they may include a website address where you could find out more and set up an initial consultation. Lastly, you could approach the local bar association for a referral to an attorney who meets your needs. You do not have to hire them, but if you do you may have to pay a referral fee to the bar association for the initial contact.
As soon as you have contact details for several potential attorneys then you should arrange an initial consultation so you can ‘interview’ them to find out more. When you first talk with a Tampa criminal attorney you need to find out what their fees are, what their experience and qualifications are and if they would be able to represent you. Gathering as much information as you can should help you to make a better and more informed decision on whom to hire.