Powers of Attorney
It is a common misapprehension that Powers of Attorney are mainly for the elderly when in fact every adult should consider having a Power of Attorney in place. If you suffered a stroke, serious accident or long term sickness and had no Power of Attorney and were incapable of putting one in place, then no one has legal authority to manage your finances and property. Your family would be faced with having to apply to the Court of Protection for a Deputyship Order.
Powers of Attorney are documents in which you authorise someone else – an Attorney - to be able to make decisions on your behalf. Powers of Attorney are enormously powerful, but useful, documents.
We can help you with the following types of Power of Attorney:
Lasting Powers of Attorney (LPA)
There are LPAs which delegate the authority to make decisions about property and financial matters (such as running bank accounts and investments, and buying and selling property) and also LPAs which give the Attorney the ability to make decisions about health and welfare matters, including medical treatment. The Health and Welfare LPA allows you, if you want to, to give your Attorneys the power to make decisions about giving or withholding life-sustaining treatment in the event that you are critically ill.
We advise on the whole process, including:
The merits of putting in place LPAs in the first place
Whether or not you should have a separate LPA relating to your business interests
How the forms should be drafted, and what to include and leave out
The signing formalities
Who can act as Certificate Provider, confirming you have capacity to put the LPAs in place – we can usually provide this service, or if not, we can explain who can do it instead
The registration of the forms with the Office of the Public Guardian
The duties and responsibilities of the Attorneys.
If you would like to speak to someone at TWM Solicitors about putting in place LPAs, please contact a member of our Private Client team. It is helpful if you have also completed the attached questionnaire: LPA client guide
Enduring Powers of Attorney (EPA)
Since October 2007, it has no longer been possible to put in place a new EPA or to make changes to an existing one. However, EPAs signed before that date are generally valid.
If the person who has made a valid EPA begins to lose mental capacity to manage their own affairs, their Attorneys will need to register that document with the Office of the Public Guardian. We can assist you with this process, prepare the necessary notice and application paperwork, and advise you on the implications of registration for the person who has lost capacity and their Attorneys.
General Powers of Attorney
Unlike LPAs and EPAs, General Powers of Attorney do not continue to be effective if the person who has made it loses mental capacity. However, they can be extremely useful if you need someone to be able to carry out administrative tasks on your behalf. For example, if you are a party to a transaction and are going to be physically unable to sign sale or purchase documents (perhaps because you are going abroad at the relevant time). We can advise on the process and implications, and draft the necessary paperwork.
What happens if I lose capacity and do not have a Power of Attorney in place?
If you lost mental capacity without having put in place a Lasting or Enduring Power of Attorney, no one will have automatic authority to be able to manage your affairs on your behalf. In that situation, somebody – perhaps a close friend or family member, or a professional – will have to apply to the Court of Protection to be appointed as your Deputy. Deputies do not generally have the power to make decisions about health and welfare matters, so will be restricted to making decisions about your finances and are supervised by the Court of Protection. For more information about Deputyships, please visit our page.
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Mr M, Private Client. August 2017