Lasting Powers of Attorney
There has been some debate recently on the appointment of Attorney using a Lasting Power of Attorney and the use by the Attorneys of those powers.
The debate has been raised by comments made by a Senior Court of Protection Judge who raised concerns over the supervision of Attorneys.
With the correct advice on who to appoint, and what provisions to include, many Lasting Powers of Attorney are prepared and used by Attorneys to assist people with their decisions and affairs, without problems.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a document that you sign, which gives the people you choose to appoint (“your Attorneys”) the ability to deal with decisions on your behalf.
A Lasting Power of Attorney for Property and Financial Affairs allows your Attorneys to make decisions concerning your property and finances. For example, they could arrange to sell your house and make payments on your behalf from your bank account, by signing cheques or withdrawing monies as you do.
A Lasting Power of Attorney for Health and Welfare allows your Attorneys to make decisions concerning where you might live, who might visit you and what medical treatment you might have.
When can a Lasting Power of Attorney be made?
In order to make a Lasting Power of Attorney, you have to have capacity to make it. It is you who decides who to appoint and what guidance or preferences that you wish to include in the document.
Many clients consider making a Lasting Power of Attorney as they get older, but it is relevant to consider making a Lasting Power of Attorney at any time of life to ensure that Attorneys are appointed to act if you become unable to deal with your affairs yourself, due to an accident or serious illness.
Where you have your own business, it is advised that you consider appointing an attorney as part of your business risk management plan, so that the business can continue to operate if you became unable to make decisions yourself. A separate Lasting Power of Attorney can be made to deal with your business affairs with different Attorneys being appointed to deal with your business decisions, if this is appropriate.
What can my Attorneys do?
Your Attorneys can do what your Lasting Power of Attorney allows them to do. When you prepare the document, you can consider this and what you wish your Attorneys to do. Your appointment can give very wide powers for your Attorneys to deal with all matters on your behalf at any time. If you wish you can include guidance in the document setting out what you wish your Attorneys to deal with.
Your Attorneys cannot use a Lasting Power of Attorney until it has been registered with the Office of the Public Guardian. This registration can be submitted as soon as you have signed or delayed until the Attorneys need to use the document.
A Lasting Power of Attorney for Property and Financial Affairs can (if you wish) be used whilst you have capacity in addition to when you lose capacity. The ability of your Attorneys to use the document whilst you have capacity can be useful if you are physically unable to attend the bank or deal with matters yourself.
A Lasting Power of Attorney for Health and Welfare can only be used where you have no capacity to make the decision in question.
The Mental Capacity Act 2005 contains 5 principles that your Attorneys must comply with, in addition, the Attorneys must consider the guidance and information in the Mental Capacity Act Code of Practice. The Attorneys must consider these in respect of each decision they make.
Who do I choose as my Attorneys?
One of the advantages of making a Lasting Power of Attorney is that you can choose who will deal with your decisions for you. This can be a family member, friend or a professional.
It is important that you consider the abilities and qualities of the person or persons you wish to appoint. You will be giving your Attorneys wide powers and you must trust that they will deal with your affairs for you as you would wish if you become unable to deal with them yourself.
If you choose to appoint several Attorneys the document sets out whether you appoint them to make decisions jointly and severally, jointly or jointly for some decisions and severally for other decisions. The appointment of several Attorneys and how they are to make decisions and the consequences need to be considered carefully before making this choice.
How do my Attorneys use the Lasting Power of Attorney?
You, or your Attorneys will need to lodge the original or a certified copy of the original registered Lasting Power of Attorney with each authority they wish to deal with. Your bank will have a procedure to lodge the Lasting Power of Attorney with them which allows your Attorney to run your bank account.
In respect of Health and Welfare your Attorneys would produce the original or a certified copy of the document to your doctor, care home manager or other authority. Health and Welfare decisions can only be made by your attorney where you have no capacity to make that decision yourself.
Are my Attorneys Supervised?
Your Attorneys are not supervised on a day to day basis.
Provisions can be placed in the document for example requesting your Attorneys to produce accounts to a third party on an annual basis.
Including persons to be notified that you are making the document can ensure that another party is aware of the powers your Attorney has.
The registration of the document at the Office of the Public Guardian is only a validation of the document not a trigger for the Office of the Public Guardian to supervise the actions of an Attorney.
It is important that you appoint Attorneys with the right qualities who will comply with the principles of the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice.
If you have concerns over the actions of your Attorneys and you have capacity you can arrange to revoke/cancel the Lasting Power of Attorney. This revocation/cancellation must be submitted to the Office of the Public Guardian. Where you do not have capacity and a third party has concerns over the actions of your Attorney a report can be made to the Office of the Public Guardian, if the Office of the Public Guardian agree with those concerns they will appoint an officer to visit you.
What happens if I lose capacity and I have not made a Lasting Power of Attorney?
If you have no capacity to make a Lasting Power of Attorney and decisions need to be made on your behalf. The person wishing to make that decision can make an application to the Court of Protection to be appointed as a Deputy or for a decision to be made.
Our Wills, Trusts and Probate solicitors, Amy Makaruk and Julie Neilson will be able to assist and advise you on making Lasting Powers of Attorney and Court of Protection Procedure.
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.
