What is a Power of Attorney?
A Lasting Power of Attorney is a legal document which grants a power to someone else (an “Attorney”) to act for you and is a legal authority for your Attorney(s) to sign off documents on your behalf. It is a very powerful tool – and one on which you should always take legal advice before it is prepared and signed.
The primary reason for any individual to make a Lasting Power of Attorney (LPA) is to ensure that someone is able to act on their behalf in the event of losing mental or physical capacity.
It is essential for everyone to have an LPA in place to cover that eventuality as, without it, if you lose capacity you will not be able to make an LPA. The resulting process is both time consuming and costly – for your next of kin to apply to the Court of Protection for a ‘Deputyship Order’.
There are different types of Power of Attorney. However, there is one constant with all Powers of Attorney, namely that you cannot create a Power of Attorney unless the Donor (the giver of the power) has the mental capacity to do so.
For persons in a vulnerable position, it is essential to have legal advice and mental legal capacity assessment undertaken. We can guide you through that process, provide assessments on legal capacity or arrange for medical assessment if that is deemed by us to be necessary.
Lasting Power of Attorney (LPA)
It is generally best advice for most people to make the full Lasting Power of Attorney. There are two types of LPA:
- Property & Financial Affairs
- Health & Welfare
The Health & Welfare LPA was introduced to specifically cover areas of welfare decision-making such as where to live and the kind of medical treatment to be received.
It was a welcome introduction as now an Attorney can be appointed specifically to make these decisions for the Donor. Of course such health and welfare decisions can only be made in the event of the Donor having lost mental capacity.
There are a number of factors and guidelines for Attorneys under the Mental Capacity Act under which the LPA structure was introduced. We can advise you on all aspects.
Enduring Power of Attorney (EPA)
LPAs have replaced the previous Enduring Power of Attorney (EPA) with effect from September 2007. You cannot now undertake any new EPA but existing ones signed before September 2007 should be valid.
Please check with us before attempting to use or act on an EPA.
Registering an old EPA
If the Donor of an old EPA (signed before September 2007) has lost mental capacity (or is about to lose mental capacity) there is a duty for the Attorneys to ‘register’ the EPA document.
We can help you with the EPA registration process.
The alternative position: Court of Protection Deputyship
Where there is no LPA or previous EPA in place, the next of kin (or whoever is best placed to act) can apply to the Court of Protection to become the ‘Deputy’. Previously this term would be known as acting as someone’s ‘Guardian’ or ‘Receiver’.
You will need legal and medical assistance to apply to the Court for Deputyship. We can advise you on the need for the application and what it entails. When acting as someone’s Deputy there are several responsibilities, including ongoing responsibilities for lodging annual accounts.
Costs
Usually the costs of applying are payable out of the assets of the person for whom you are applying – we will advise you at the outset. The costs are usually a fixed sum that the Court has ordered to be paid in such matters, unless there are specific complications in which case the Court can assess higher costs to be paid.
Our Lasting Power of Attorney team
We have team of lawyers with a wealth of experience in advising on all aspects of Power of Attorney and Court of Protection matters. We will explain the options available to you and guide you through the application processes. Experienced lawyers are available for appointments at all our office locations.
Usman Khan LLB Hons Solicitor and Head of Private Client (Chesham & Amersham)
Johanna Knott BA SFE TEP Solicitor, member of STEP (the Society for Trust and Estate Practitioners) and Solicitors for the Elderly (Chalfont St Giles)
Lucy Pankhurst LLB Hons Solicitor (Stone)
Contact us
To make an appointment to discuss Lasting Power of Attorney with a member of our friendly and responsive legal team please contact us:
info@bwksolicitors.co.uk or telephone us at 01494 773377 (Amersham/Chesham office), 01494 870075 (Chalfont office), or 01296 747151 (Stone office).
Or complete the form below