What are they?
From the 1 October 2007, a new type of power of attorney, called a ‘Lasting Power of Attorney’ (LPA) was introduced. A power of attorney is a legal document where a person gives another person or persons (the attorney(s)) authority to make specified decisions on his or her behalf.
You can, for instance, prepare a simple power of attorney under the Powers of Attorney Act 1971 which simply gives a person authority to act on your behalf and you give them details on how you wish them to act. However, this authority will end if you become unable to make decisions because of physical inability such as a stroke or coma following an accident, or you lose capacity because of dementia. If you want your attorneys to continue to act for you in relation to your finances and/or your health and welfare decisions you will need to fill in a lasting power of attorney. There are two types of Lasting Power of Attorney:
- Property and Affairs – allows your attorney(s) to deal with your property and finances. This provides your attorneys with similar powers as could be given in the old Enduring Power of Attorney. The financial LPA can be used both when you have capacity to act as well as if you lack mental capacity to make a financial decision.
- Health and Welfare – allows your attorney to make care decisions on your behalf but only when you lack mental capacity to do so yourself. This covers very extensive matters such as where you might wish to be cared for, what you like to eat, or your religious feelings but the most important matter is that it could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment
As with any power of attorney, you should take care whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. If you appoint more than one attorney you can appoint them to always act together (jointly) or together or separately (jointly and severally). You may even appoint them to act jointly for some things and joint and severally for others, although this should only be done with advice as it may cause problems when using the power. You may also choose to appoint a replacement attorney, in case they die or otherwise cannot act for you, but your attorneys cannot appoint successors or delegate the powers you give them.
How do they work?
The attorney will only be able to act when the LPA has been signed by you and your attorney, certified by a person who confirms you understand the nature and scope of the LPA and that you have not been unduly pressured into making the power. This person is called a ‘certificate provider’. The certificate provider will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of the Public Guardian before it can be used. This is to protect you from misuse of the power.
What do I do next?
If you are thinking of making a Lasting Power of Attorney, there are certain things you should record before coming to see us. You can print off a questionnaire (PDF format – see next paragraph) which you can complete outlining the basic information required to complete a power of attorney.
Existing Enduring Powers of Attorney
Any enduring power validly made before 1st October 2007, will continue to be able to be used but only in respect of your financial property and affairs. If you wish to give authority over your health or welfare you will need to make a health and welfare LPA.
What happens if you have not made an LPA or EPA?
If you lack capacity to make a financial decision then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf, called a deputy. This is both costly and time consuming.
Legal Services – Public Guardianship Office/Court of Protection
What happens if you don’t appoint an attorney and you become mentally incapable?
If you have assets such as a house or savings which have to be used to look after you they will be frozen if you lose capacity. Someone – usually your nearest relative or if no such person is available, a professional, such as a Solicitor – will apply to a Court called the Court of Protection. The Court will appoint someone to act. The mentally incapable person becomes a ‘Patient’ and the person who deals with the finances is called a ‘Deputy’.
The Court oversees the work of the Deputy and, once a year, the deputy has to submit an annual account to show how the money of the patient has been spent. The Court then takes an annual administration fee which is based on a scale fee – very roughly about £800 per £100,000 every year. On top of that, if there are professional advisers then they too will need to be paid.
It is therefore better to appoint an attorney but if this is not possible a professional such as one of our solicitors can smooth the administrative problems of making such an application.