Powers of Attorney, Lasting Powers of Attorney and Court of Protection
As life expectancy increases we find more people need help with their personal administration and health decisions. Appointing someone to help is achieved by a Power of Attorney, and are becoming increasingly popular. Powers of attorney are also referred to as an Enduring Power of Attorney (‘EPA’) and Lasting Power of Attorney (‘LPA’), and LPA’s can be for finance decisions or health decisions or both.
EPAs could be drawn up until 30th September 2007. When the Mental Capacity Act 2005 came into force, Lasting Powers of Attorney (LPAs) came into force. Any EPAs made before this change remain valid. After 30th September 2007 only Lasting Powers of Attorney can be made.
An LPA cannot be used until it has been registered with the Office of the Public Guardian. An EPA can be used before registration and the attorney appointed by an EPA is only required to register the document once the person they act for has lost or is losing the mental capacity to manage their own finances.
The duty of an attorney is to the person they act for and are the same whether they are appointed by EPA or LPA. Nominated attorneys must act at all times in the best interests of the person that has nominated them. This will often be a tricky balancing act particularly when direct family is concerned.
An attorney acting for their cash-rich elderly parent may find it difficult to resist the temptation to use money to help themselves or their own children. Equally there may be conflicting views on medical or welfare decisions, which may also have financial implications.
Attorneys have very limited powers to make gifts or loans from the funds they manage. Attorneys can only make modest seasonal gifts and they have no authority to loan funds. Attorneys can apply to the Court of Protection for the authority to make large gifts or for a statutory Will to be executed, but to attempt to do so without authority risks the attorney being removed from their role.
Misuse of funds is known as financial abuse and it is an issue of ever growing concern especially amongst professionals who work specifically with the elderly.
What makes us different?
We understand that preparing these documents can be a complex and sometimes emotional procedure. We treat all our clients equally and every piece of documentation is a bespoke package to truly represent our client’s exact wishes.
Our firm’s policy is to take considerable time and care so that wishes are respected, and risks indentified.
We pride ourselves on spending detailed time looking into all the financial implications so that no mismanagement of funds is possible. We explain every aspect of the document comprehensively and handle the process from drafting to approval to registration.
Equally we spend time discussing possible long term care options and who might be best appointed to make those decisions if needed.
- Property and Financial Lasting Powers of Attorney.
- Health and Welfare Lasting Powers of Attorney.
- Court of Protection and mental capacity issues.