What is a Power of Attorney?
A 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.
The types of Power are:
This is an option that is often overlooked by solicitors. We mention it first as it is the quickest and cheapest method for appointing an individual to act for another individual. The power generally lasts for a period of 12 months (but can be extended) and it ceases to be operational once the Donor loses mental capacity.
It is effective and can be used by the Attorney as soon as it has been signed off, which makes it easy and effective for quick decisions. It does not need to be registered with the Office of the Public Guardian whereas the LPA does.
The General Power of Attorney allows the Attorney to sign off financial transactions including sale of property for the Donor.
If you are intending to arrange for property to be sold via a General Power of Attorney please ensure you take legal advice from us before commencing or instructing that process.
The General Power of Attorney is not intended to cover health and welfare decisions; for that it is essential to make a Lasting Power of Attorney.
The problem with a General Power of Attorney is that it ceases to operate when the Donor loses mental capacity. Therefore, 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.
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.
There is a special procedure for registration which is rather complicated and which we recommend we undertake on your behalf.
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.
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.
Costs for preparing Powers of Attorney start from as little as £150+vat for a General Power of Attorney and £240+vat for an LPA. Where both LPAs are undertaken we reduce the charge for the 2nd LPA by 50%. For LPAs there are also fixed registration costs (currently £82 per LPA) that are payable to the Office of the Public Guardian and if you would like us to register your LPAs then we charge £120+vat for that registration service (with a 50% reduction charge for registering a 2nd LPA). Most people ask us to not only prepare the LPA but to register it too. Our charges include all advice and work involved in the preparation and registration processes and the providing of solicitor-certificates and certified copies for future use.
Johanna Knott: an experienced solicitor and a member of the Society for Trust and Estate Practitioners and Solicitors for the Elderly. Contact Johanna at firstname.lastname@example.org. Johanna is based at our office in Chalfont St Giles and is a local resident.
Helen MacDiarmid: an legal executive with years of experience in handling a wide variety of Power of Attorney, Probate and Wills related matters. She is also a member of Solicitors for the Elderly. Contact Helen at email@example.com. Helen is based at our office in Chalfont St Giles.
Jennifer Beaujeux: an experienced legal executive with very sound knowledge in advising clients on all aspects of Power of Attorney, Probate and Wills related matters. Contact Jennifer at firstname.lastname@example.org. Jennifer is based at both our Chalfont St Giles office and our Stone office.
Robert Cartmell: an experienced specialist Solicitor having conducted Wills, Probate, Lasting Powers of Attorney and Court of Protection matters over an 18-year period for individuals and couples. He is a professional member of the Solicitors for the Elderly. He is currently appointed Deputy or Trustee on a number of matters. Contact Robert at email@example.com. Robert is based at both our Chalfont St Giles office and our Stone office.