A Power of Attorney is a legal way of giving someone else the power to manage your affairs. Usually this is because it is difficult for you to manage your affairs yourself. Perhaps you’re
- Working abroad; or
- Suffering a physical disability so your movement is restricted.
Often the “someone else” is a close relative, a friend or a solicitor. You appoint this person as your “attorney”. Note, nobody can “take” your power of attorney. It must be willingly “given”. The donor chooses who is the attorney and can cancel the arrangement at any time.
A Power of Attorney only applies if you are fully aware of the implications of the arrangement. It ends if you become mentally incapable of managing your own affairs.
This page deals with Powers of Attorney for use in England and Wales. If you wish to create a Power of Attorney for use abroad you should contact a lawyer who is qualified in the country involved. If you already have a Power of Attorney for use abroad please refer to the section about Seeing a Notary.
Lasting Power of Attorney
A Lasting Power of Attorney allows you to let someone else manage your affairs, even if you become incapable of managing your own affairs. The new Lasting Power of Attorney form is more complicated than its predecessor, the Enduring Power of Attorney. The Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used. Because of the additional complexity, Lasting Powers of Attorney are more expensive.
There are two types of Lasting Power of Attorney:
- Health and welfare;
- Property and financial affairs.
The Lasting Power of Attorney requires you to state:
- Who you wish to become your attorney;
- How you want them to act on your behalf.
The Lasting Power of Attorney must be confirmed by a certificate provider. A certificate provider is someone with the skills and qualifications who can confirm that, in their opinion, you understand what this document means and the effect of signing it. Often a GP acts as a certificate provider. The certificate provider must discuss the implications of the Lasting Power of Attorney with you, without the attorney(s) being present. Your attorneys then formally confirm that they understand their responsibilities by signing. Both your and your attorney’s signature must be witnessed.
Before we meet it would be useful if you would like to review my Lasting Power of Attorney pdf questionnaire or doc questionnaire. If you know the answers to all the questions you’ll reduce your costs.
Enduring Power of Attorney
Since October 2007 it is no longer possible to make an Enduring Power of Attorney. A Lasting Power of Attorney is the name of the new way to achieve the same thing.
However, any Enduring Power of Attorney made before October 2007 is still valid. However, if you want to change anything, then you need a new Lasting Power of Attorney.
An Enduring Power of Attorney allowed you to choose someone to manage your affairs, even if you became incapable of managing your own affairs, either:
- Temporarily or permanently; and
- Physically or mentally.
This might be due to e.g. illness, disability or accident. Enduring Powers of Attorney could cover, for example:
- Managing shares;
- Selling a property;
- The day-to-day management of a person’s financial affairs.
Note an Enduring Power of Attorney was and is only valid, if you were fully aware of the implications of the arrangement, at the time you made it.
When the donor has lost capacity to manage their affairs, the “attorney” should register the Enduring Power of Attorney so the Court of Protection and its administrative office, the Office of the Public Guardian, can oversee the attorney’s actions.
The Court of Protection and becoming a Deputy
If someone became mentally incapacitated without first granting an Enduring or Lasting Power of Attorney, the matter can be taken to the Court of Protection. The court may then allow someone to manage the person’s affairs for them. This person, as described in more detail in this link, is known as a “Deputy“.
Types of Deputy
There are two types of Deputy, one for Property and affairs and one for Health and Welfare. A Property and Affairs Deputy must keep accounts and report to the Office of the Public Guardian. Often this person is a close relative, but the court can appoint other people such as lawyers.
The Court of Protection requires a medical report before you can apply to become a deputy. The court also charges an annual fee for supervising the deputy’s work.
Lasting Power of Attorney Costs
Sometimes drawing up a Lasting Power of Attorney can be relatively quick and simple. Other times it is more complicated. Why not call me for an informal discussion.