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Lasting Powers of Attorney

 Lasting Powers of Attorney are new and the rules which apply to them have been carefully thought out so that anyone appointing an Attorney understands exactly what is involved.

A Lasting Power of Attorney must be in the form prescribed in the legislation and there are helpful notes accompanying the form to direct anyone appointing an Attorney about the meaning and consequence of doing so.

Here are some of the important points which must be taken into account:

Choosing an Attorney

1. Above all, your Attorney(s) must be trustworthy and, depending on which type of Lasting Power of Attorney is being created, have the skills required to manage your property and money or to make decisions about your personal welfare.
2. You should consider carefully whether a family member will be able to act in your best interests or whether you should choose someone independent of the family or a combination of both.
3. If you wish to create a Lasting Power of Attorney for your property and affairs and a personal welfare Lasting Power of Attorney then you should consider whether you wish to have different Attorneys for each Lasting Power of Attorney - they will be asked to do very different things.
4. A Lasting Power of Attorney is a very powerful document giving another person or persons power over your financial affairs and / or your person wellbeing. Choosing just one Attorney is more risky because he or she will be acting with little supervision or scrutiny particularly if you are incapacitated and the scope for abuse is therefore greater than if you appoint two or more Attorneys to act on your behalf.
5. Where more than one Attorney is appointed, they can act together, together and independently or together in respect of some matters and together and independently in respect of others. You must tick one of these alternatives in the Lasting Power of Attorney document.
   
   Joint Attorneys must all act together and cannot act separately, signing every cheque for example and making every decision. There is clearly less scope for abuse where Attorneys must act together but there are drawbacks: A Lasting Power of Attorney with joint Attorneys will terminate if one of the Attorneys dies, loses capacity or becomes bankrupt. Where the appointment is joint and several, the Attorney can act together or separately and one can continue to act if the other cannot.
   
   The Lasting Power of Attorney can also appoint one or more replacement Attorneys to act if one or more of the Attorneys cannot continue to act. This is another important safeguard to consider.

General or Limited Powers?

A General Power means your Attorney will be able to stand in your shoes and manage all your property and affairs or to make all your personal welfare decisions. Alternatively, you may want conditions or restrictions imposed on the Attorney’s powers.

Any restrictions or conditions must be carefully worded and you should consider what arrangements should be made to manage decisions that are not covered by the Lasting Power of Attorney.

You can also include in the Lasting Power of Attorney guidance to your Attorneys but these are not legally binding.

Your Attorney will be under a legal duty always to act in your best interests.

The Certificate

An independent third party of your choice will sign the certificate in the Lasting Power of Attorney to show that, in his or her opinion, you understand the purpose and scope of the appointment, no fraud or undue pressure was used to make you sign the Lasting Power of Attorney and that there is nothing else that might prevent the Lasting Power of Attorney being created.

Choosing a Certificate provider is an important safeguard and without their statement a Lasting Power of Attorney cannot be used.

Registration

The Lasting Power of Attorney cannot be used until it has been registered with the Office of the Public Guardian. The Lasting Power of Attorney can be registered any time after it has been completed and signed by all those named in the document.

Although you do not have to register the Lasting Power of Attorney straight away it is safer to do so. For example, if you suddenly faced a medical emergency the Attorney(s) could not act on your behalf until the Power is registered. This typically takes at least 5 - 6 weeks.

Once registered, a property and affairs Lasting Power of Attorney can be used while you have capacity if you direct your Attorney to act for you but a personal welfare Lasting Power of Attorney can only be used if you lose capacity to make personal welfare or healthcare decisions.

When the application to register is made, you can name up to five people (other than your Attorney(s) to be notified.

If you decide not to notify anyone then a second person will be needed to provide an additional certificate.

Naming at least one person to notify is an important safeguard because if you lack capacity at the time of registration then you will be relying on these people to raise concerns.

If you would like to know more about Lasting Powers of Attorney please contact Mr Will Vine in our Private Client Department

© Harold Michelmore & Co 2007

Please note that the information and advice in this Note is provided for general guidance only. We believe it is accurate and up to date, but you must seek personal advice on any specific case or matter. We cannot accept liability for your reliance only on information or advice in this note.