Lasting Powers of Attorney
A Lasting Power of Attorney is a document which allows you to appoint a person or persons as your Attorney(s) to act on your behalf in the event that you lose mental capacity and you are unable to make your own decisions.
You may have been familiar with Enduring Powers of Attorney, which had a similar purpose. Following changes to the law in 2007, it is no longer possible to put in place an Enduring Power of Attorney, although if you have an existing Enduring Power of Attorney it remains valid.
You can choose your spouse, civil partner, other relation, friend or indeed a professional person to act as your Attorney. You may appoint more than one Attorney and you can choose if they should act either together or alone. You may also choose to appoint substitute Attorney(s) to act in the event that the Attorney(s) you appoint cannot act. You can provide guidance within the Lasting Power of Attorney as to how you wish your Attorney(s) to act and set out restrictions should you wish.
A Lasting Power of Attorney must be registered at the Office of the Public Guardian if it is to be used. Registration can take place immediately so you have everything in place, hopefully, well before it is required. Alternatively, registration can wait until you are no longer able to manage your own affairs. As it takes several weeks to register a Lasting Power of Attorney, we normally recommend that your Lasting Power of Attorney is registered immediately so that it is ready for use when needed. There are two types of Lasting Power of Attorney:
Lasting Power of Attorney for Property and Financial Affairs
The Lasting Power of Attorney for Property and Financial Affairs allows you to appoint an Attorney or Attorneys who will make on your behalf any decisions which you would normally have made for yourself in regard to your finances, such as the payment of your bills, matters concerning your property and its possible sale. Although a Lasting Power of Attorney must be registered before it may be used, it can be used with your consent prior to your losing mental capacity. This makes it a very useful document as you may wish to activate it if you are travelling abroad or perhaps unwell in hospital and unable to sign documents.
Lasting Power of Attorney for Health and Welfare
The Lasting Power of Attorney for Health and Welfare allows you to appoint an Attorney or Attorneys who will make decisions regarding your health including medical treatment and general welfare, such as where you should live.
In addition, should you wish, you may also expressly give your Attorney(s) the right to give or refuse consent to lifesustaining treatment on your behalf.
This Lasting Power of Attorney differs from the Lasting Power of Attorney for Property and Financial Affairs in that it may not be used until you have lost mental capacity. It must still be registered before use but whilst you retain mental capacity, your Attorney(s) have no authority to act under it.
Why should I have a Lasting Power of Attorney?
Lasting Powers of Attorney should form part of a general estate planning exercise and should be put in place well before required. In just the same way that you would prepare a Will to deal with your affairs following your death, you should also be aware of the possibility of losing mental capacity and take steps to provide for your affairs to be managed on your behalf in this eventuality.
Mental capacity may be lost either gradually as a result of old age or illness or suddenly as a result of an accident. Once mental capacity is lost, it is too late to consider Lasting Powers of Attorney and it will become necessary for a family member or other interested party to apply to the Court of Protection to be appointed as a Deputy to act on your behalf. The process of appointing a Deputy is expensive and lengthy and not one that we would recommend.
What information do I need to provide for a Lasting Power of Attorney?
We will need the full names, addresses and dates of birth of you and your chosen Attorney(s) and any substitute Attorney(s). If you are appointing more than one Attorney, we need to know if you wish to appoint your Attorneys jointly or jointly and severally, in other words if they should act together or independently of one another. We will also need details of any restrictions or guidance you wish to include.
We will need the full details of any individuals whom you wish to be notified when the Lasting Power of Attorney is registered.
The Lasting Power of Attorney requires either longstanding friends or a professional, such as your solicitor or GP, to act as a Certificate Provider to sign the Lasting Power of Attorney to confirm that that he or she believes that you understand the nature of the document and are under no undue influence or pressure to enter into it. Your advisor at RadcliffesLeBrasseur would be pleased to discuss acting as a Certificate Provider for you.
If you would like to put in place a Lasting Power of Attorney, please contact your usual advisor at RadcliffesLeBrasseur who will be happy to assist and advise you.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.