Powers of Attorney of various types have been vital parts of Legal planning for well over a thousand years.
A lot of people have used a general power of attorney for short-term matters such as getting a document signed while you’re aware on holiday and things like that.
Some have Medical Directives or Advance Medical Directives which give certain instructions on your behalf to doctors – but nothing else.
More commonly, people have had Enduring Powers of Attorney, which deal with financial matters. These have now been phased out, in the sense that there’s still perfectly valid but you can’t create a new one and you can’t amend an old one so the historic documents if you like.
The new versions came in in 2007.
Make Lasting Powers of Attorney LPA FAQ Betty Figg
There are are two Lasting Powers of Attorney:
1) The Property and Financial Affairs Lasting Power of Attorney which deals with property and financial affairs surprisingly enough.
2) There’s very underrated a Health and Welfare Lasting Power of Attorney which deals with things like doctors, where you live, medical matters etc. In effect, the soft issues of life are often the most important ones.
Apart from the medical issues, where you live is pretty crucial because whilst your Financial Attorneys can buy and sell your home on your behalf, what they can NOT do is actually move you if you haven’t got Mental Capacity.
So if, for example, Social Services were to come in and to feel because you couldn’t make yourself understood that you had lost Mental Capacity (as happened to Betty Figg who might want to Google) then basically you’ve lost control – Social Service and the Court of Protection take over.
With both the Health & Welfare and the Property and Financial Affairs Lasting Powers of Attorney, you have appointed your own attorneys who make decisions for you if it is felt that you are unable to make decisions yourself.
That will happen to most of us at some stage in our life – at any time after 18 – through accident stroke, mental problems and more and as we get older we may be perfectly capable of making decisions but we may want to delegate more decisions to third parties and the only safe way to do that is through the Lasting Powers of Attorney.
Ignore the phone number on the video – it is me in a former incarnation – now it is 01323 766766.
Currently, it is taking up to 6 months from the time people ask me to set up their Lasting Powers of Attorney to when they can actually be used. That is made up of up to a month obtaining all the absolutely precise information needed and getting everyone to sign the documents correctly. This is followed by an inexcusable 20 or so weeks delay at the Office of The Public Guardian to get the rubber stamping done. If any of the signatories’ names or signing dates are less than 100% correct, the document will be rejected!
What is the Court of Protection:
The Judges of the Court of Protection make decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).
They are responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
Dealing with the Court of Protection is far from inexpensive, and makes the costs of planning ahead through Lasting Powers of Attorney appear inconsequential, especially if they appoint professional trustees, who must be paid their fees for managing your life.
When should you make Lasting Powers of Attorney?
Once you are 18, then it will be the Court of Protection who takes charge, not your parents, partner, even spouse – UNLESS you make Lasting Powers of Attorney well in advance (ideally on your 18th birthday). For a child who has not got mental capacity, then the parents would need to apply to the Court of Protection to be appointed as the child’s financial Deputy, but the Court may choose to appoint a professional and is likely to keep control of health and welfare decisions in most case. This generally means individual applications for each decision.
Like every other aspect of Legal Planning, your Lasting Powers of Attorney will need regular review, and sometimes changes will need to be made.
I have been diagnosed with Dementia – is it too late to make Lasting Powers of Attorney?
Not necessarily – most people in the early stages are perfectly capable of planning ahead by making Lasting Powers of Attorney – have a chat with your doctor and give me a call on 01323 766766.
The five key principles of the Mental Capacity Act are:
- Principle 1 – A presumption of capacity.
- Principle 2 – The right to be supported when making decisions.
- Principle 3 – An unwise decision cannot be seen as a wrong decision.
- Principle 4 – Best interests must be at the heart of all decision-making.
- Principle 5 – Any intervention must be with the least restriction possible.
