Since October 2007 if you wish to create a Power of Attorney that will continue in force and can be used by your Attorneys even after you have become mentally incapable you must now create what is known as a Lasting Power of Attorney.
If you have previously created an Enduring Power of Attorney under the old system this will continue to be valid and can be used but you cannot create a new one in this format.
What is a Lasting Power of Attorney?
There are two types of Lasting Power of Attorney (LPA).
A Property & Affairs LPA authorises your Attorneys to deal with your property in much the same way as the old Enduring Power of Attorney did.
A Health and Welfare LPA authorises your Attorneys to make decisions about your personal welfare but only if you have become mentally incapable. These can include decisions about life sustaining treatment.
There are a number of points common to both types of LPA which are important to note:
- The Form is very much more detailed than the old Enduring Power of Attorney Form and great care must be taken in completing it.
- The Power cannot be used until it has been registered with the Office of the Public Guardian [OPG]. There is a set registration process which must be followed and the OPG charges a fee (currently £110.00). This process takes at least three months.
- You can appoint one or more than one Attorney. If you appoint more than one you must say whether they are to act together or independently. You can say that they can act independently in some things but that they must act together in other things.
- You can appoint a back up Attorney who will only be able to act if there is a problem with the main Attorneys.
- You can restrict the powers that you grant and you can give guidance as to how those powers are to be exercised. Please bear in mind that the more you restrict the Attorneys powers the less the Attorney will be able to do once you have become incapable.
- As part of the registration process you should nominate at least one and as many as five people to be notified when the Application for Registration is made. These can be anyone who is close to you and can be relatives but cannot be the Attorneys or their immediate family. If you do not name anyone it will be necessary to use two Certificate Providers (see below).
- You must nominate a Certificate Provider who will sign a different part of the Form to confirm that you are aware of what you are doing, you are doing it without duress and that they have discussed the Power with you before hand. The Certificate Provider can be someone who has known you for a long time or one of a number of specified Professionals such as a Doctor or Solicitor.
- Once the Power has been registered, subject to any limitation or restriction stated in it, it can be used by your Attorneys immediately. It does not, however, prevent you from making decisions or dealing with things yourself if you wish to do so and many people sign these Powers in case they do become incapable.
What should I do?
It is our view that you should consider at the very least creating a Property & Affairs LPA. Whether you need to create a Health and Welfare LPA will depend upon your personal and family circumstances. However failure to create a Power could mean that if you do become incapable suddenly (e.g. following a stroke) your family may need to apply to the Court of Protection for someone to be appointed a Deputy and this is a very much more complicated and expensive process and certainly not recommended!
We can prepare all the forms you need and deal with registration on your behalf.
Please also see about Living Wills.