Lasting Power of Attorney

Two types of Last Power of Attorney documents came into operation on 1st October 2007 under the Mental Capacity Act 2005; they were slightly amended on 1st October 2009.

Lasting Power of Attorney Health and Welfare
Lasting Power of Attorney Property and Financial Affairs

Lasting Power of Attorney Health and Welfare

– includes powers to deal with money and property - this allows attorneys to deal with matters such as a person's bank account, tax bill and if necessary the sale of a house – however specific restrictions can be imposed

Lasting Power of Attorney Property and Financial Affairs

– covers health and personal matter such as where a person will live, their social activities and diet BUT can only be used once the donor has lost mental capacity – the donor must no longer have the ability to make that type of decision for themselves

• it is advisable for everyone to consider making arrangements in good time that allow someone trusted (an attorney) to make necessary decisions on their behalf in case health problems develop which result in an inability to organise and control their own financial affairs or make decisions concerning their own health and welfare

• a Lasting Power of Attorney document must be drawn up whilst a person is capable of giving consent to someone else to manage their affairs

• normally the attorney only takes over a person's affairs once they become incapable of organising them on their own – however there are circumstances in which attorneys can manage a person's affairs before they lose capacity e.g. a person who has very poor eyesight and little or no mobility may choose someone they trust, such as a son or daughter to go to the bank on their behalf

• when a person makes a Lasting Power of Attorney it is a legal requirement that an unconnected person, who has either known the donor for two years or has a relevant professional skill that assists them to make a judgement, signs a formal certificate stating that the donor has understood what they are agreeing to and have not been put under any pressure to sign a Lasting Power of Attorney

• a Lasting Power of Attorney DOES NOT come into effect until it is registered with the Office of the Public Guardian (the OPG) – it can be registered at any time after it is made but the attorneys will not be able to act until it has been registered

• each type of Lasting Power of Attorney document allows a person to list up to five people who should be informed by the Office of the Public Guardian when the document is registered – this ensures that trusted persons, who are separate from the attorney(s), are informed that a person's affairs are about to be taken over by someone else – they can object to the registration if they have concerns – this could be important where the donor has already lost mental capacity

• attorneys must act in a donor's best interests – specific guidance can be given in the Lasting Power of Attorney which is not legally binding but it will help attorneys to follow a donor's wishes

• one or more attorneys can be appointed – there are only two boxes provided on the form but in fact any number can be appointed and it can be specified whether they must act "jointly" which means they must always act together or whether they can act "jointly and severally" which means that they can act independently – it can even be specified that they can act together on some matters and separately on others

• however, to insist that attorneys act only together can complicate matters and lead to unhelpful inflexibility – for example, attorneys may eventually live in different parts of country or one of them may move abroad or one of them may not always be well enough to be fully supportive to a donor who eventually loses mental capacity – furthermore, it probably is not advisable to appoint an attorney who cannot be trusted to act alone

• an attorney must be a trusted person over the age of 18 and must have capacity themselves – a replacement attorney can be named in case an attorney is unable or unwilling to act when required – the resigning attorney must tell the donor and the OPG

• non-professional attorneys can receive out-of-pocket expenses

• there is no one point where a person under the Mental Capacity Act 2005 will be treated as having lost capacity to make any decisions about their health and welfare – an attorney will be expected to help a donor to make these decisions for themselves where possible on individual matters

• it must be made clear on the form whether a donor wishes their attorneys to make life-or-death decisions about their medical care

• Lasting Powers of Attorney Health and Welfare documents are like "Living Wills" but they have the force of law and cannot normally be overridden by attorneys, relatives or doctors

• different attorneys can be appointed to deal separately with financial matters and health and welfare decisions

• if valid Lasting Power of Attorney documents are not made before a person loses mental capacity, family or close friends who wish to help will have to apply to the Court of Protection to be appointed as a "deputy", that is to say, a court appointed attorney – this process is likely to take several months and will be more expensive

• a donor can cancel their Lasting Power of Attorney even after it is registered if they have the mental capacity to make this decision but they must tell their attorneys and ask the Office of the Public Guardian to remove their Lasting Powers of Attorney from the Register of Lasting Powers of Attorney

For further information you may wish to consult the website of the Office of the Public Guardian: www.justice.gov.uk/about/opg

For further information contact Us:

Telephone: 01904 623751

Fax: 01904 623155

E-mail: enquiries@mitchellssolicitors.co.uk

Get started by downloading our Powers Of Attorney document