The future of Powers of Attorney after 1st October 2007

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(the future of Powers of Attorney after 1st October 2007)

This follows on from our Legal Alert in September warning of the demise of Enduring Powers of Attorney. We thought that our clients and prospective clients would appreciate a summary of the key changes that have come into effect since 1st October when Lasting Powers of Attorney became law.

  • What is a Lasting Power of Attorney?
    Lasting Powers of Attorney replace Enduring Powers of Attorney as a way* for an individual (donor) to delegate decision-making powers to another (attorney).They remain the principal means for individuals to direct who will manage their affairs, and under what conditions, were they to ever lose the ability to manage their own legal and financial affairs by reason of:-

    • An accident,
    • A debilitating illness, or
    • Old age eventually catching up
  • How are Lasting Powers of Attorney different to Enduring Powers of Attorney?
    Firstly, there is now a new aspect to your affairs that you can delegate decision making powers about

    1. there is a separate Lasting Power of Attorney for Personal Welfare issues (such as decisions about treatment, health care etc)
    2. as before, there is still a Lasting Power of Attorney for Property and Financial issues

    Secondly, there is a new process for creating a Lasting Power of Attorney

    1. the new Property and Finances form is now 25 pages
    2. the new Personal Welfare form is now 28 pages
    3. there is a new role for a Certificate provider (who must themselves fully understand the purpose and scope of the donor’s decision and the document, confirm that the donor similarly understand this and also affirm that there has been no fraud or undue pressure on the donor)
    4. there is a new formal detailed Donor statement

    Thirdly, there is a new registration process whereby

    1. the donor now chooses who should be informed of the registration
    2. the Lasting Power of Attorney can not be used, even where the donor has capacity and merely wants to delegate authority, until it has been registered with the Office of the Public Guardian
    3. it is then for the individual institutions to decide whether the donor retains capacity in the future at the time of each individual decision.

    Fourthly, there is a new opportunity to set out clear guidance, conditions and restrictions to the appointment of attorneys and the scope of their authority.

    With the expansion in the length of the form and supporting documents has also come a welcome opportunity for individuals to more clearly provide guidance as to their wishes, set any particular conditions or restrictions that they may wish to impose on their attorneys and generally consider an increased range of options when drafting their authority to best fit their particular circumstances, be that financial, medical or family.

  • Why are Lasting Powers of Attorney necessary?
    The concern with Enduring Powers of Attorney was that a poorly drafted one could, in extreme circumstances, place the person who had lost capacity in an even more vulnerable position.The Mental Capacity Act 2005 therefore explicitly states a number of principles and a structure to better protect and empower the vulnerable:-

    • an assumption that an adult has capacity to take decisions unless it can be proved otherwise
    • the right for individuals to be supported to make their own decisions
    • the right for individuals to make what seems eccentric or unwise decisions
    • anything done for someone without capacity must be in their best interests
    • anything done for someone without capacity must be the least restrictive of their basic rights and freedoms
  • Why should I use a solicitor?
    With the demise of Enduring Powers of Attorney, Lasting Powers of Attorney documents are now more detailed and place significant duties on the Certificate Provider and Attorney. It is essential that everyone involved fully appreciates the nature and extent of these duties. As such, while it may appear very simple, it is essential that anyone contemplating granting either a Property and Affairs or Personal Welfare Lasting Power of Attorney should have excellent legal advice.We always ensure that our advice is provided in person, not by letter or telephone. The reason for this is that the powers that the Attorney could have are potentially extremely wide. We consider it vital to ensure that the particular terms of the Powers of Attorney are tailor made to best fit your particular circumstances, family composition and wishes.PLEASE DO CALL US ON 01903 229999 and ASK FOR OUR PRIVATE CLIENT TEAM and either Ian MacaraTania ClaphamIan PeterkinGreg WoodsJo OstramTricia StephensonKatie Haffenden or one of our caring and professional support team will be pleased to assist you further.Alternatively, please continue to visit our comprehensive website for details of additional services that we can off and our individual photo CVs. We also have links to the helpful Office of the Public Guardian website where more detailed information Guides are available on: People who want to make a Lasting Power of Attorney, People taking on the role of Attorney and People acting as Certificate Provider or Witness.