Lasting Powers of Attorney
Prepare for your future- specialist Power of Attorney advice
The Probate, Trusts and Wills Team at Mayo Wynne Baxter understands that mental or physical incapacity can occur at any time and cause difficult circumstances for families and individuals. The Mental Capacity Act 2005 deals with the appointment of Attorneys by individuals. This is an extremely sensitive and often complicated legal process, so we’ve provided you with some frequently asked questions from our clients:
What is a Lasting Power of Attorney?
This is a document that allows one person to delegate authority for financial and/or welfare decisions and legal decisions to one or more people including in cases of the loss of mental capacity. If required you can restrict the scope of your Attorney’s authority in several ways.
Why do I need one?
No one can guarantee that they will always be able, physically or mentally, to manage their own financial affairs. For example, if you are out of the country for extended periods, or in hospital, you may not be able to sign important documents in person.
Mental incapacity can arise at any time, for example through illness or trauma. If it happens, an ordinary, or general, Power of Attorney would become invalid. However a Lasting Power of Attorney (LPA) remains valid, provided that it has been registered at the Office of the Public Guardian.
What do they do?
LPAs, which replaced Enduring Powers of Attorney (EPA) from October 2007, allow you to appoint one or more Attorneys to deal with all or separate aspects of your financial and welfare affairs. You can specify that your Attorneys should act together for some decisions, and independently for others. A substitute Attorney can be appointed by you if your original Attorney cannot act. You can appoint the same, or a different, Attorney to deal with your health and welfare matters but they can only act following your loss of mental capacity.
Why have they been introduced?
The old EPA was quite a simple and blunt instrument. It only dealt with legal and financial affairs, and not health and welfare. There were also concerns that an EPA could be open to abuse by unscrupulous Attorneys. EPAs could be used immediately and only needed registration if the donor lost mental capacity.
The LPA document itself is longer than the old EPA, and allows you to give guidance to your Attorneys. Before the LPA can be used a certificate must be given by an independent person to confirm that you understand its scope and consequences. The LPA must be registered at the Office of the Public Guardian before use.
Is it too late?
Powers of Attorney can only be drawn up by someone who is mentally capable of doing so. Sometimes accidents or ill health mean that’s no longer possible.
If there is an Enduring or Lasting Power of Attorney already in place, then the Attorney can take over managing the relevant affairs of the person who no longer has capacity, provided that the Power of Attorney is registered at the Office of the Public Guardian. If there is no Power of Attorney, then someone, often a family member will have to apply to the Court of Protection to be appointed as the “Deputy” for the person who has lost capacity, known as the “Protected Person”. This is quite a long process, and can be complicated and expensive. Once appointed, the Deputy will be supervised by the Court and will have to account for every penny spent by them from the Protected Person’s funds. They will also have to ask the Court’s permission to take certain actions.
Our team of experienced advisors can help you with this application, and offer guidance once appointed. We can also act as the Deputy for a Protected Person where appropriate.
What should I do next?
We would advise all clients to consider preparing one or both types of LPA to ensure you have appointed someone to manage your affairs if you lose mental capacity. However if you are considering a Power of Attorney for any other reason, for example if you intend to travel overseas, or if you need help to manage your affairs through physical frailty, then a general Power of Attorney may be suitable for you.
Contact our expert and friendly Probate, Trusts and Wills Team today to arrange an appointment at any of our offices, or alternatively at your home, place of business, hospital or care facility.