Since 2007 there have been changes to Powers of Attorney. There are now two types.
Many readers will be familiar with Enduring Powers of Attorney which allowed you to appoint one or more attorneys to look after your financial affairs. An Enduring Power of Attorney could be made effective immediately but it was quite common for a restriction to be included to say that the power would only be operative if you actually become mentally incapable.
Whilst Enduring Powers of Attorney were quick and easy to set up, they only covered your financial affairs. In addition, the Government and Law Commission felt there was evidence to suggest that some attorneys were abusing their powers. Following extensive consultation, the Mental Capacity Act was passed in 2005. As from 1 October 2007, it has no longer been possible to sign Enduring Powers of Attorney although Enduring Powers of Attorney signed before that date still remain perfectly valid. We now have Lasting Powers of Attorney, of which there are two types: a Property and Affairs Lasting Power of Attorney covers your finances in the same way as Enduring Powers of Attorney; a Personal Welfare Lasting Power of Attorney allows you to appoint one or more attorneys to look after your personal welfare. This includes decisions about where you are to live and what clothes you are to have. It is also possible to give your attorneys power to give or refuse consent to life sustaining treatment of your behalf.
You can sign both or either Lasting Powers of Attorney, according to your wishes. As with Enduring Powers of Attorney, a restriction can be included within a Property and Affairs Lasting Power of Attorney to say that the document will only become operative if you actually become mentally incapable. A Personal Welfare Lasting Power of Attorney will only ever become operative if you can no longer make personal welfare decisions yourself. This means that, while you have capacity, it will be your decision, and not your attorneys’, as to whether or not you are to receive life sustaining treatment.
Under the new regime, a Lasting Power of Attorney can only be used when it has been registered with the Office of the Public Guardian. When Lasting Power of Attorney were first introduced, at least one other person had to be notified that the Lasting Power of Attorney had been signed. This requirement has now been abolished so that notification is optional. If, however, you do decide you would like people to be notified that you have signed a Lasting Power of Attorney, they will still need to be notified when you apply to register your Lasting Power of Attorney with the Office of the Public Guardian.
Once you and the certificate provider have signed the Lasting Power of Attorney, it must be signed by all the attorneys. The registration process can then take up to two months and there is a fee of £82 for each Lasting Power of Attorney registered.
For those of you who signed an Enduring Power of Attorney before the deadline of 1 October 2007, there is no need to sign a Property and Affairs Lasting Power of Attorney. You may, however, wish to consider signing a Personal Welfare Lasting Power of Attorney. Both Lasting Powers of Attorney have space for you to give guidance to your attorneys about the way in which they are to exercise their powers. In a Personal Welfare Lasting Power of Attorney, this guidance may include the circumstances under which you do not want to be resuscitated if you are terminally ill.
Although Lasting Powers of Attorney are more complex documents than Enduring Powers of Attorney, they are still very much to be encouraged. In particular, a Property and Affairs Lasting Power of Attorney will avoid the considerable costs and delays and annual fees which will be incurred in the Court of Protection if you lose your mental capacity and have not signed a Power of Attorney to cover the situation.
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This article was written by Alexander Astley of Gullands Solicitors, Maidstone, Kent was updated on 23 January 2018.
Gullands solicitors can be contacted by Tel: 01622 678341 or by Email: a.astley@gullands.com
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