A Power of Attorney allows you to give someone you trust the power to act on your behalf. At the time of giving the power you must have sufficient mental capacity to make that decision.
A General or Specific "Ordinary Power of Attorney" (OPA) is usually used where the person giving the power requires assistance with their financial affairs in circumstances where it is physically inconvenient or impossible for the person to deal with the matters themselves – such as, for example, where someone becomes ill and physically incapacitated or where a document needs signing whilst abroad. The power can be as broad or narrow as you require and can allow the attorney to deal with all of your financial affairs or just specific matters such as selling a property or collecting a pension. Importantly, the OPA will automatically terminate on loss of capacity or death. If you want a power to continue once you have lost your capacity then you must give a Lasting Power of Attorney.
The Mental Capacity Act 2005 introduced major new legislation relating to Powers of Attorney, in order to protect those lacking in capacity from abuse and duress. Properly completed Enduring Powers of Attorney prepared prior to 1st October 2007 remain valid, but the Act introduced two new types of Lasting Powers of Attorney to replace Enduring Powers of Attorney.
The new LPA not only affords better protection for an individual once they lose their capacity, but it also allows the person giving the powers (the donor) much more say in relation to how they want their affairs to be conducted. The donor can leave instructions as to the ways in which the power is to be exercised.
Once you have lost capacity, if you have not made an LPA, the only way that someone can deal with your affairs is by applying to the Court of Protection for a "deputy" to be appointed. The process is lengthy, complicated and much more costly than an application for an LPA. This is because there are many more forms to be filled in and various notices to be served before the court will grant an order. Sometimes, especially where the deputy is not a family member, the court may decide that the matter requires a hearing. The process can take about 4 months or longer depending upon the complexity and can cost thousands of pounds. Another key difference is that with a deputyship order, the person who has lost mental capacity cannot maintain any control over how their affairs are conducted.
Following incapacity there may be very import decisions to be made in relation to where you are to live, what medical treatment you are to have and so on. Such decisions are very difficult for someone else to make on your behalf. If there are very clear instructions from the donor in the LPA and this is backed up by a clear file note retained by your solicitor, as an independent witness, the power can be exercised confidently and without challenge. It will prevent conflict or indecision and consequently relieve the appointed attorney from considerable pressure.
The forms are long and complicated with lots of complex legal issues to be taken into account. It is possible to obtain guidance from the Office of the Public Guardian, however, they are only able to give general advice, not specific legal advice concerning the circumstances of your particular case. We are able to offer legal advice and help you understand all your options so that you can make an informed decision about the various aspects of the LPA.
We can give you peace of mind so that the LPA is properly prepared to avoid it being rejected at registration, the result of which will save delay and possibly additional court fees. More importantly, if the forms are not properly completed they could be challenged or found to be invalid at the time of incapacity. By then it will be too late to do anything about it.
A solicitor can advise you in relation to the appropriate appointment of an attorney, that is, who you should appoint, which powers should be granted to them, whether there should be a ‘joint’ or ‘joint and several’ appointment and we can advise you of the implications to you and the attorneys of the choices you make. If you make the wrong choices you could find that the LPA is invalid or challenged at registration or once the attorney comes to use the power on incapacity.
We can also help you ensure that the LPA is clear about what the attorney can and cannot do. Any ambiguity could result in the attorney not being able to exercise a power that you intended or conversely being able to deal with your affairs in a way that you had not intended. A challenge to the validity of the LPA or the exercise of powers can be costly and result in family rifts. It is too late to rectify problems after you have lost capacity. If found to be invalid an application will need to be made to the Court of Protection which is a lengthy process and could cost several thousand pounds.
The meaning of capacity is not straightforward. The law accepts that capacity may come and go and that it may be relative to the complexity of the decision being made. Just because someone makes a decision that others would consider unwise, does not mean that they do not have capacity. If the appropriate steps are not taken to assess capacity and to ensure that there is properly documented evidence from the relevant professionals, at the time of giving the power, the appointment may be challenged later. The application to register the LPA must contain a statement from a “certificate provider’ who must sign the form verifying that the person giving the LPA has capacity. We can provide that certificate for you and we will ensure that it is backed up by sufficient evidence on the file to prove that you had capacity at the time of making the LPA should your capacity ever be challenged.