LASTING POWERS OF ATTORNEY – WHAT ARE THEY AND WHAT ARE THEY FOR? ARE THEY FOR YOU?
It could be said that a Lasting Power of Attorney is the natural extension of making a Will. People make a Will to clearly set out what is to happen to their possessions when they die, but also to make the practicalities of life easier for those left behind. A Lasting Power of Attorney can be made by, say, parents in mid to old age and helps both them and their children should they become incapacitated for any reason. This might be classically as a result of old age, becoming forgetful, or even getting dementia, but it may also be something temporary such as a stroke or having a fall and breaking an arm or a leg. Suddenly the person can no longer sign cheques or make important decisions.
A Lasting Power of Attorney is made when the individual is of sound mind and wants to prepare in advance for when they cannot make decisions or deal with their own affairs in a way that they would want to. You can appoint one of your children to act as your Attorney and give them either a general or specific power. A general power allows them to deal with all of your affairs, a specific one could be limited, for instance to accessing just one bank account or whatever.
The process is relatively simple, the person making the Lasting Power of Attorney (the Donor) needs to be seen by a certificate provider, who could be the solicitor drawing up the Lasting Power of Attorney or their GP who assesses and confirms that they are able to make the Lasting Power of Attorney, an Attorney or Attorneys are appointed and very often the person making the Lasting Power of Attorney names someone who is notified when the Lasting Power of Attorney is registered, or becomes activated, by being registered with The Court of Protection.
If the person who is making the Lasting Power of Attorney does not feel it appropriate to register it straight away, then the forms are completed, but not registered with The Court of Protection. Should the Attorney need to act, the form is then registered with The Court of Protection, which carries a fee of £120.00, the person nominated to be notified is served a Notice and can object to the appointment of the Attorney. If no objection is filed then the Attorney is appointed and acts on behalf of the person making the Lasting Power of Attorney in the way set out in the document.
Most Lasting Powers of Attorney are related to finance and property. You can have a social and welfare one which, for instance, deals with issues surrounding resuscitation if the person is severely ill in hospital, or for any other particular wishes in this area that the Donor may have.
If you do not make a Lasting Power of Attorney and, say, the elderly person becomes confused or unable to sign a cheque, unable to pay bills, unable to manage their affairs generally, there will be problems. They may have to go into a home where fees will have to be paid and other arrangements made. If there is a Lasting Power of Attorney which is not registered it can be registered at this point and the Attorney can act fairly quickly to deal with the situation. If there is no Lasting Power of Attorney then the only way anybody can act on behalf of that person is by making an application to The Court of Protection to be appointed as a Deputy. This is a far more complicated procedure and so more expensive. The court fee is £400, but the forms and application procedure is a lot more complicated and if a lawyer is acting, their charges would generally be in the region of at least £500 to £1,000, possibly more if the estate is complicated. Unlike a Lasting Power of Attorney, applying for Deputyship in this way requires a lot more information. Full details of the person’s assets have has to be filed with The Court of Protection on numerous fairly lengthy forms. The appointment is far more rigorous and a Deputy is required to file annual returns with The Court of Protection detailing each and every movement of assets within the person’s estate. Quite an onerous responsibility.
So, just as you need to make a Will to make things easier for those left behind, so too you need to make a Lasting Power of Attorney to make it easier for your relatives to deal with a situation of sudden short term infirmity, or the onset of Alzheimer’s, Dementia, incapacity due to old age generally. Those of you with elderly parents should discuss Lasting Powers of Attorney with them and consider having them in place, even if you don’t register them straight away. Once the document is made it can be registered as necessary. A simple procedure that avoids the involvement of The Court of Protection for that person’s affairs.
For more information please contact Cotswold Family Law on 01608 686590 or visit www.cotswoldfamilylaw.co.uk.