Do you sometimes worry what will happen to your affairs if through illness and/or old age you are no longer able to look after them yourself?
Powers of Attorney have been in existence for a considerable number of years and many people will have made an Enduring Power of ttorney (“EPA”) which became possible after 1970. In a simple form you were able to appoint someone as your attorney to take care of your affairs in the event that you became mentally incapable of doing so yourself.
The law of mental capacity has, however, been more recently reviewed and under the terms of the Mental Capacity Act 2005, Lasting Powers of Attorney (LPAs), were brought into effect with rather more stringent requirements than EPAs in order to protect the interests of those who have lost capacity.
LPAs are split into a Property and Financial Affairs LPA and a Health and Welfare LPA. LPAs grant extensive powers which permit your attorneys to carry on your affairs as if they were you. The Health and Welfare LPA also provides an advanced directive about life sustaining treatment to be incorporated, if you wish, which can be useful guidance to your doctors and those caring for you.
The forms that are in the format supplied by the Office of the Public Guardian, initially appear somewhat daunting and complicated. It is probably wise to seek the help of a lawyer to put an LPA in place to ensure that the form itself, together with the accompanying notices and application are correctly completed.
LPAs are not effective until they have been registered with the Office of the Public Guardian and it is a sensible measure to register them immediately after they have been signed notwithstanding the fee of £130 for each LPA. Once registered they can be put away and need only be produced if required.
Registration can take weeks, even months, to complete which, if delayed until signs of dementia are already there, could cause an inconvenient hiatus in the management of your affairs. In making an LPA you need to decide who you would like to have as your attorney or attorneys. You can also stipulate if you have more than one, whether they can act independently of each other or must act jointly. You also need to consider a person who will be your “certifier” – usually a person who has known you for at least two years and who can include of course, your lawyer, accountant or doctor – who can sign the form to state that you are of sound mind and understand the effect of the LPA.
As added protection, you also need to provide the name of one or more “notified persons” on whom a notice will be served when the application for registration is made. This person or persons should know you well and is there to protect your interests and can step in and object if they feel there is an appropriate reason why registration should not take place – if, for example, you have appointed an unsuitable attorney or they believe you are being unduly influenced. The real benefit of an LPA is that by putting it in place, while you are able to do so, you can choose the person or people to manage your affairs that you would wish. If no attorney exists and you lose capacity to deal with your own affairs then there is a lengthy and expensive process to appoint a “deputy” who may not be the person you would choose.
If you have an EPA in place this can still be used in the event you become incapable of managing your affairs. This too needs to be registered at the Office of the Public Guardian. An EPA has the advantage that it is a General Power of Attorney until registered and can be used by the attorney in the interim before registration has taken place.