How do I use an Enduring or Lasting Power of Attorney and What Can I do as an Attorney appointed in an Enduring or Lasting Power of Attorney?

What is an Enduring Power of Attorney or Lasting Power of Attorney?

An Enduring Power of Attorney can no longer be made, but those that were made before 1st October 2007 can be used but only for decisions relating to property and financial affairs. Lasting Powers of Attorney can be made in respect of Property and Financial Affairs and Health and Welfare. An Enduring Power of Attorney and a Lasting Power of Attorney are both documents which create a contract between the Donor (the person making the document and appointing the Attorneys) and Attorneys (the persons appointed to make decisions on behalf of the Donor).

When can an Enduring Power of Attorney or Lasting Power of Attorney be Used?

In order to deal with a question, matter or decision on behalf of the Donor, the Attorney must first consider what the document (the Enduring Power of Attorney or Lasting Power of Attorney) says, for example, the Attorney may be restricted on making decisions until the Donor has lost capacity or may not be able to make decisions without a co-Attorney also making the decision if more than one Attorney is appointed on a joint only basis. There may be guidelines within the document that the Donor had suggested when the document was made as to who the Attorney must consult or what decisions can be made.

In addition, Please note:

•  An Attorney appointed under a Lasting Power of Attorney cannot act until the document is registered with the Office of the Public Guardian.
• Decisions regarding Health and Welfare by an Attorney appointed by a Lasting Power of Attorney for Health and Welfare cannot be made until the document is registered with the Office of the Public Guardian and the Donor does not have capacity to deal with the decision themselves.
• Decisions regarding property and financial affairs may be able to be made by the Attorney when the Donor could make that decision themselves but only if the document provides that this can be done.
• An Attorney appointed under an Enduring Power of Attorney can make decisions without registration whilst the Donor has capacity but only regarding property and financial affairs and there is an obligation to register the Enduring Power of Attorney with the Office of the Public Guardian when the Donor is or may be losing capacity.

How Can an Attorney or Donor Advise an Authority that the document exists?

Each financial or other authority will need to see the original or a certified copy of the power of Attorney to be produced to them before they will allow the Attorney to deal with matters on behalf of the Donor.

For Lasting Powers of Attorney registered after 17th July 2020, an access code will be provided by the Office of Public Guardian to the donor and attorneys so the document can be viewed online.

Authorities may also have their own procedures such as an appointment with the donor and attorney and production of identification.

What can an Attorney Do?

The powers of an Attorney are regulated by the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice. The Mental Capacity Act Code of Practice can be downloaded from the Gov UK web site. https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice.

When considering any decision, the Attorney must also follow the 5 principles of the Mental Capacity Act 2005 and the Code of Practice. The 5 Principles are:-

1. The Attorney must assume that the Donor can make his or her own decisions unless it is established that he or she cannot do so.
2. The Attorney must help the Donor make as many of his or her own decisions as he or she can. The Attorney can only treat the Donor as unable to make a decision if all practical steps have been taken to assist the Donor to make a decision. An Attorney can only treat the Donor as unable to make a decision if the Attorney has been unable to succeed in helping the Donor make the decision himself/herself through those steps.
3. The Attorney must not treat the Donor as unable to make a decision simply because the Donor may make an unwise decision.
4. The Attorney must act and make decisions in the Donor’s best interests when the Donor is unable to make a decision.
5. Before the Attorney makes a decision or acts for the Donor the Attorney must consider whether they can make the decision or act in a way that is less restrictive of the Donor’s rights and freedoms but still achieves the purpose.

If the Enduring/Lasting Power of Attorney has no restrictions then generally, the Attorney having followed the principles of the Mental Capacity Act 2005 and the Code of Practice can make any decision that the Donor would have made themselves. However, there are statutory restrictions on gifting from the Donor’s money and the Attorney cannot make or change a Will for the Donor. If appropriate an application for a statutory Will or permission to make gifts can be submitted to the Court of Protection by the Attorney.

The Attorney must be careful not to mix the Donor’s money with the Attorneys’ own money.

If you would like assistance or advice with dealing with matters on behalf of a Donor please contact Hereford Office : Amy Makaruk, Julie Neilson or Daniel Owens in our Hereford Probate Department on 01432 352121 or Leominster Office : Gill Pryce on 01568 615905.

This blog published by T A Matthews is for information purposes only and is not considered legal advice on any subject matter.  The blog should not be used as a substitute for legal advice from a solicitor, and readers should consult their own solicitor on any specific legal questions concerning a specific situation.