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The administration, approval and registration of Lasting Powers of Attorney are supervised by The Office of the Public Guardian, a Government agency of the Ministry of Justice. A Power of Attorney is a legal arrangement that authorises you, the ‘Donor’, to appoint your own choice of trusted people, typically close relatives, to become your agents. They can then make decisions on your behalf should you in future lack the capacity to do so.
As the Donor of a Power of Attorney, you can choose one or more persons to act as your authorised attorneys, but at least two are recommended, as well as at least two reserve attorneys, in order to maintain validity should an attorney die or become lacking in mental capacity. Your attorneys can be anyone 18 or over who is your husband, wife or partner, a relative, a friend or a professional adviser.
It may be imprudent for an elderly couple to be attorneys for each other, since future mental or physical disability could negate their ability to fulfil their attorneyship duties when required: it is recommended ideally that younger generation persons are appointed, eg children, or if none, perhaps responsible nephews and nieces: however at least 1, ideally 2, reserve attorneys, should also be appointed.
There are two types of Power of Attorney, one for Health & Welfare and one for Property & Financial Affairs. You as the Donor, the person giving a Power of Attorney to their chosen agents, must be 18 or over and have mental capacity, ie the ability to make your own decisions, at the time of setting up and registering the legal arrangement.
A Health & Welfare Power of Attorney allows your legally appointed agents to make decisions about your diet and dress, daily medical care, where you live, moving into a care home, your personal correspondence and papers, whom you have contact with, or life-sustaining treatment. This type of Power of Attorney can only be used when you are unable to make your own decisions.
A Property & Financial Affairs Power of Attorney allows your legally appointed agents to make decisions about your money and property. This may be paying bills, claiming and collecting benefits, selling or renting out your home or raising necessary loans, perhaps to fund care home fees, making investments and dealing with your tax affairs.
For a Property & Financial Affairs Power of Attorney, any appointed attorney must not be bankrupt or subject to a Debt Relief Order at inception, but if they subsequently become bankrupt after registration, the power of attorney can come to an end, unless there are other attorneys in place. It can continue if there are other attorneys who can act ‘jointly and severally’, or there are replacement attorneys. The authority can be used as soon as it has been registered, but only with the Donor’s permission.
A Power of Attorney will end automatically if the attorney dies, loses mental capacity, ie the ability to make decisions, or divorces or ends a civil partnership with the donor or if the attorneys can only make decisions together and ‘act jointly’.
If you do not have a Power of Attorney and you lose mental capacity, the Court of Protection will appoint a deputy to act on your behalf. A deputy is a person appointed and supervised by the Court of Protection to manage the affairs of someone who has lost capacity where they have not planned ahead by making a Power of Attorney (or an Enduring Power of Attorney pre 01 Oct 2007). The Court will look at a range of factors when deciding whom to appoint and will appoint a professional or a Court official to act as a Deputy where there is nobody willing or able to act on behalf of the person lacking capacity.
To apply for a deputyship once you are unable to look after your affairs independently can take months. Additionally, fees are required for a GP assessment, Court of Protection application and annual supervision, as well as legal fees. There may also be a requirement to take out a bond to insure against any misappropriation of funds by an attorney.
The Court of Protection law was created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. Examples of personal welfare issues determined by the Court are decisions about where protected persons live, whom they see and how they are cared for.
A Power of Attorney can only be used if it has been registered by the Office of the Public Guardian, and can take up to 12 weeks to register if there are no mistakes in the application.
An EPA was the legal arrangement that was in place pre-01 October 2007 before the current Lasting Powers of Attorney (LPAs) regime as described above was then introduced: EPAs however covered decisions about finances and property only, ie money and bills, bank and building society accounts, property and investments, and also pensions and benefits, but not Health & Welfare.
The disadvantage with a Financial and Property EPA is that it could not and cannot be registered with the OPG until and unless the donor, ie the owner of the EPA, starts to lose or has lost their mental capacity, ie they are unable to make a decision at the time it needs to be made because of a mental impairment: you must still involve the person in making decisions whenever possible and only make decisions on their behalf which are in their best interests.
Significantly, the major change post-01 October 2007, is that LPAs can be, and should be, registered with the OPG immediately after document attestation, to validate them for immediate use should the donor lose mental capacity.
You can no longer make a new Financial and Property EPA application, but if you made a correctly completed and signed EPA before October 1 2007, it is still valid and can still be registered and used for financial management, thus you do not necessarily need to replace it with an LPA.
An owner of a valid financial EPA might also wish now to make a Health and Welfare LPA to cover decisions about their care, treatment, medication and decisions on a suitable home care package or transfer into a care home.
The EPA, or indeed an LPA, will end if the donor cancels it or dies.
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