WHAT IS A LASTING POWER OF ATTORNEY?
Lasting Power of Attorney is an important legal document. The Mental Capacity Act 2005 came into effect from October 2007, with the Lasting Power of Attorney replacing the old Enduring Power of Attorney.
Lasting Power of Attorney allows you to take control of your circumstances before it is too late to nominate a trusted individual to help make decisions for you in the event you have been rendered unable to do so, for example, in the case of a degenerative disease, an accident or a stroke giving you the power to legally entitle them to make decisions for you.
Dealing with your financial affairs, health and care would be virtually impossible without someone authorised to act on your behalf. Long delays, expense and distress maybe encountered by relatives if they have to go through the Court of Protection to be permitted to act on your behalf.
Now more than ever people are beginning to realise just how important a legal document the Lasting Power of Attorney is. The passing of the 2005 Mental Capacity Act (MCA) in October 2007 has had far reaching repercussions for many families in England and Wales.
The Act was set up to provide:
“a framework to empower and protect people who may lack capacity to make some decisions for themselves”. (if you would like to read the full MCA 2005 Act please click here).
Take for example the obligations of the British Bankers Association which must follow the MCA statute.
UK Finance says that “if one of the joint-account holders becomes mentally incapable, the bank or building society must get an order from the Court of Protection before they can let you use the account”.
The other joint account holder does not automatically have the right to access the money, unless they have authority under a Lasting Power of Attorney, Enduring Power of Attorney, or there has been an order from the Court of Protection.
A spouse or family member will be denied access to an account, unless they provide legal authority that they are available to sign and act for that person. Without this authority an application is made to the Court of Protection to be appointed as Deputy.
Deputies are supervised by the Court and annual supervision fees are payable depending on the level of supervision required. They are supervised because the Court does not know the appointed Deputy is the person the donor would have chosen for themselves.
HOW DO I MAKE A LASTING POWER OF ATTORNEY
• You make a statement that sets out who you wish to appoint as your Attorney, how many you wish to appoint (Max 4 people ) and how you want them to act. You can also nominate “People to be Told”these are people who you wish to be informed when the Lasting Power of Attorney is registered , you can also set out any restrictions on what the Attorney is able to do and not able to do.
• All Lasting Powers of Attorney require a ‘certificate provider’. A certificate provider is an individual with whom you have spoken and who has been convinced that you fully understand the implications of the Lasting Power of Attorney. They must also be convinced that you have not been coerced in any way into making a Lasting Power of Attorney.
Family members cannot be certificate providers; you can use a professional person or you can ask a person who has known you for more than 2 years and is willing to take on this role.
• Your appointed Attorney (or Attorneys) makes a statement. In this section they give their personal details, acknowledge they understand the important role they are agreeing to, and give a witnessed signature.
When does the Lasting Power of Attorney come into force?
This will depend on the type of Lasting Power of Attorney you have chosen. There are two types of Lasting Power of Attorney: ‘Property and Financial affairs’ ‘Health and Welfare’.
Property and Financial Affairs. Permits the Attorney you choose to look after your financial affairs when you are no longer able, (but not your personal health affairs). It gives your Attorney the authority to deal with buying and selling your property, outstanding debts, bank accounts and investments. This can be used while someone still is capable but has chosen to delegate this role to their Attorney.
Health and Welfare. Permits your attorneys to act for you in respect of your personal affairs and welfare, (but not your financial affairs), it covers decisions about health and care and even deciding where someone is to live but can only be used if someone is incapable of dealing with such matters themselves.
Lasting Power of Attorneys need to be registered with the Office of the Public Guardian before they can be used.