POWERS OF ATTORNEY

What is a Power of Attorney?

A Power of Attorney is a document created by a Deed in which one person ('the Donor') gives another person ('the Attorney') authority to look after their affairs. More than one Attorney can be appointed. All Powers of Attorney are in effect lifetime mandates and cease automatically on the death of the Donor.

There are basically three types of Power of Attorney, these are:

Ordinary or General Power of Attorney
Enduring Power of Attorney
Lasting Power of Attorney

Ordinary or General Power of Attorney

An Ordinary Power of Attorney is a simple document in which the Donor appoints an Attorney to deal generally with their financial affairs or specifically to deal with a certain matter for example, the sale of a property.

Although a cheaper option than other types of Power of Attorney, the Ordinary or General Power of Attorney has its limitations as it will be automatically revoked if the Donor becomes mentally incapable. It is therefore not suitable for long-term management or for many elderly people as the document may be revoked at just the time it is most needed.

Enduring Power of Attorney

Enduring Powers of Attorney (EPA) can no longer be created, they were special forms created by the Enduring Powers of Attorney Act 1985. These documents had significant advantages over the Ordinary Power of Attorney in that they were not cancelled when the Donor became mentally incapable.

EPAs made before 1st October 2007 remain in force and are still effective for the purpose for which they were created. If the Donor of an existing EPA loses mental capacity then the Attorney has a legal duty to register the document with the Court of Protection. We can advise and assist in bringing existing EPAs into use and on the registration process when needed.

EPAs relate only to the financial affairs of the Donor and do not extend to authority relating to health or welfare matters.

Lasting Powers of Attorney

The Lasting Power of Attorney (LPA) was introduced on the 1st October 2007 and has replaced the EPA to make plans for the future when you may lack the capacity to make decisions for yourself. An LPA allows the Donor to choose an Attorney or Attorneys that they trust to make decisions on their behalf. There are two types of LPA which can be created separately:

The property and affairs LPA
The personal welfare LPA

Property and Affairs LPA

In many ways similar to an EPA, but due to the length and greater complexity they are unfortunately more expensive to prepare. The property and affairs LPA allows the Donor to appoint an Attorney to manage their finances and property. An Attorney would not be able to make decisions about the Donor's personal welfare unless they have also been appointed using a separate personal welfare LPA.

Personal Welfare LPA

This document enables a Donor to appoint an Attorney to make decisions on their behalf about non-financial matters, such as medical treatment or where the Donor will live. The personal welfare LPA can only be used by the Attorney when the Donor lacks the capacity to make their own decisions.

The Certificate

An additional requirement of both parts of the LPA is that of a signature by a certificate provider. The certificate is a vital part of the LPA form and without it the LPA is not valid. Under the old EPA it was only necessary for the Donor to have their signature witnessed. Under the LPA not only must the Donor have their signature witnessed but an independent person must complete a certificate at Part B of the form. The certificate confirms that the Donor understands the purpose of the LPA and the scope of the authority under it, that no fraud or undue influence is being used to induce the Donor to create the LPA and there is nothing else that prevents the LPA being created. The certificate provider must be chosen by the Donor and be acting independently both of the Donor and of the proposed Attorney. The certificate provider must be a person who falls into one of the following categories:

Knowledge certification This is someone who has known the Donor personally for at least two years; or

Skills certification This is someone who considers that they have the relevant professional skills and expertise to certify the LPA. For example:

~A registered healthcare professional (includes GP);
~A barrister, solicitor or an advocate;
~A registered social worker; or
~An independent mental capacity advocate.

We would usually recommend a skills certification as people in this category are usually more used to assessing mental capacity. The office of the Public Guardian may also need to contact the certificate provider to verify the information they provide. Taking on the role of certificate provider is very important as it provides one of the main safeguards in the LPA process.

Registration

Both the property and affairs LPA and the personal welfare LPA, if one has been created, must be registered with the Office of the Public Guardian before they can be used. The Attorney cannot act until the registration process has been completed. There is a Court fee payable for the registration currently £120 for property and affairs LPA and £120 for the personal welfare LPA.


More information can be found by following the link to the Office of the Public Guardian

If you would like more detailed advice or wish to discuss the most appropriate actions for your particular circumstances then contact:

John Palmer
Email johnp@claytonmott.co.uk


The information and opinions contained herein are for general guidance only and not intended to constitute legal or professional advice. The information should not be relied upon or treated as a substitute for specific advice relevant to individual circumstances. Clayton Mott shall have no responsibility for any loss that may arise out of reliance on any material contained herein.