Lasting Powers of Attorney - a brief guide
Who are the people most affected?
The population is getting older all the time. People are living longer and they need to be cared for. This places an increasingly heavy burden on the community as well as on the individuals who have to care for the needs, both emotional and physical, of the frail and elderly among us.
Around 16% of the population is at or above the age of retirement. Many of them are fit and healthy and capable of looking after themselves, but illness and accident can happen at any time and to anyone of any age when least expected.
Ageing is expected in any population and looking after elderly relatives is only one part of this community wide problem. People of any age who are rendered unable to look after themselves properly as a result of disease or accident can also need help and assistance in dealings regarding their money and belongings, as well as in dealings regarding their well being and healthcare.
How can lasting powers of attorney help me?
lasting powers of attorney came into force on October 1st 2007. There are two types of lasting powers of attorney. The Personal and Welfare lasting powers of attorney allows a person to hand over the decision-making powers in regard to their healthcare and welfare to a responsible person of their choosing. The Property and Affairs lasting powers of attorney allows a person to hand over the decision-making powers in regard to their property and affairs to a responsible person of their choosing. The Property and Affairs lasting powers of attorney is largely the same as the Enduring Powers of Attorney previously in force.
Any Enduring Powers of Attorney (EPA) made prior to the introduction of the lasting powers of attorney on October 1st are valid, though no more EPAs can be made. If any EPAs have not yet been registered with the Office of the Public Guardian to have legal standing, this can still be done. The lasting powers of attorney is more complicated than the EPA. This is mainly because they are more robust having added protection against the possibility of misuse.
Why should I make a lasting powers of attorney?
Making a lasting powers of attorney allows a person to have control over whom they wish to have appointed as the person who makes decisions on their behalf in regards to their personal welfare and health situation, as well as in regards to matter concerning their property and personal affairs. A person's solicitor may also be appointed as professional Attorney if desired.
What could happen if I don't make a lasting powers of attorney?
If you do not make a lasting powers of attorney and set out what should happen if you become incapacitated, or when you become too old to manage, the Court will step in and do this for you. A deputy could be appointed by the Court of Protection whose duty it will be to manage your affairs under the supervision of the Court.
How can I make an lasting powers of attorney?
The procedure of making a lasting powers of attorney is fairly easy. It involves these steps:
- The person wishing to make a lasting powers of attorney must first designate an Attorney or Attorneys of his or her choice.
- The person wishing to make a lasting powers of attorney needs someone to provide a certificate confirming their circumstances and capabilities or lack of them.
- The lasting powers of attorney must be registered with the Office of the Public Guardian in order to be a legal and binding document before it can be used.
- Part of the registration process of a lasting powers of attorney usually requires that certain key people need to be informed of this happening.
The procedures involved in registering a lasting powers of attorney and making it legal are so designed to involve the people concerned and to make the whole procedure as clear and open as possible.
Do you have any advice for me?
We all like to be in control for as long as we possibly can manage to. The thought of growing old and having things done to us that we may or may not agree with is a worry. It doesn't have to be like that. You can stay in control. You can choose your carers and those who will look after your property and affairs. That's what a lasting powers of attorney is designed to do for you in essence.
Of course, the subject is a complicated one that this relatively short article cannot do full justice to. If you feel comfortable with browsing the Internet and you have access to it, then the Office of Public Guardian's web site at http://www.publicguardian.gov.uk can supply much more detailed information. They have booklets and examples of the forms that you will need to fill out. Alternatively, you can find a local solicitor at who can provide you with all the relevant copies of the documents in question.
Here are some Frequently Asked Questions (FAQ) and their answers to help you understand everything better.
Q: What is involved with a lasting power of attorney?
A: A lasting powers of attorney allows someone to give an attorney of their choice the power to make certain decisions on their behalf. This is usually done while the person is still able to make their own decisions, but with the possibility in mind that they may not be able to in the future.
Personal Welfare lasting powers of attorney deals with matters that involve the person's well being. The decisions made under this kind of lasting powers of attorney are about the person's health, where they should be cared for and how. It also involves the kind of medical decisions that may have to be made. These decisions could even have life or death implications.
The Property and affairs lasting powers of attorney deals with matters that involve a person's belongings and financial situation. It can be fairly mundane things like making sure that the person receives the right level of State benefits, checking that their bank account is in order, or looking after investments, etc. This does not include having the delegated power of making a new Will on your behalf however.
The attorney who is appointed by you is expected to act in your best interests at all times, working within the Code of Practice set out in the Mental Capacity Act of 2005.
lasting powers of attorneys are not all about delegating power. They allow you to state the limits of the powers too. In this way you have a high level of control that allows you to plan your future extremely accurately to your satisfaction.
Q: Can I still use the old Enduring Powers of Attorney?
A: Yes and no; you cannot make a new Enduring Power of Attorney (EPA) as the introduction of the lasting powers of attorney on October 1st 2007 superceded the EPA. However, any EPA made before October 1st 2007 can still be registered and will be accepted as effective. The lasting powers of attorney is a more complex power designed to better serve the person making it. It goes further than the older EPA and thereby provides a safer more secure situation all round.
Q: Who can I appoint as my Attorney?
A: The term, "attorney" has the connotation of someone working within the law to most people. That is an attorney at law and is not strictly what is meant here. In this sense it means someone who is qualified that you appoint to deal with your affairs or your well being. It can be a member of your family or a friend. It can be several different people, each one controlling a particular aspect of your affairs or well being designated to their care.
There are certain restriction over you can appoint, however. The person or persons must be over 18 years of age. If you are appointing someone to look after your affairs in respect to a Property and Affairs lasting powers of attorney, then that person must not be a bankrupt. Other considerations are mainly common sense; you do need to be able to fully trust the person or persons you appoint. The powers they will be given means that you will be depending on them to do the right thing at all times.
Q: Are there any practical considerations I should be aware of?
A: Certain people have to be identified. These include the attorney or attorneys, the Certificate Provider who is able to give the relevant information about the degree of your capacity to act for yourself, and the people who need to be notified. If there are several Attorneys, do they act together, or together sometimes and independently at other times? Are there any special circumstances regarding medical decisions of life and death that may need to be made should the situation arise? These questions all need to be answered.
Your solicitor can proceed once all the preliminary work is complete. An official signing arrangement takes place when the forms are agreed on and deemed satisfactory. The lasting powers of attorneys can then be registered. There is a charge for registering lasting powers of attorneys. It is £150 for each one. Anyone wishing to register an objection to the lasting powers of attorneys can do so within the following five week period.
As with all documents within an official registration process, there may be other delays, but these should not be lengthy and the final version will arrive eventually. At this point it can be lodged at the offices of Certainty.co.uk at no charge. We hope that yours will be one of the best lasting powers of attorneys - one that is never required, which will mean that you remain fit and well and fully able to manage your own affairs. Your lasting powers of attorney in those circumstances will be a kind of insurance document giving peace of mind, but never needed.