Making a Power of Attorney

Powers of Attorney

A Power of Attorney is a legal way of giving someone else the power to manage your affairs when it is difficult for you to manage them yourself, perhaps because of a physical disability. Usually a close relative or friend or solicitor is appointed by you as "attorney". Nobody can "take" power of attorney. It must be willingly "given". The donor chooses who to appoint as attorney, and can cancel the arrangement at any time.

Power of attorney only applies if you are fully aware of the implications of the arrangement. It ends if you become mentally incapable of managing your own affairs.

This page deals with Powers of Attorney for use in England and Wales. If you wish to create a Power of Attorney for use abroad you should contact a lawyer who is qualified in the country involved. If you already have a power of attorney for use abroad please refer to the page about Seeing a Notary.

Lasting Power of Attorney

Since October 2007 a Lasting Power of Attorney allows you to choose someone to manage your affairs even if you become incapable of managing your own affairs. However, the Lasting Powers of Attorney form is long and more complicated than an Enduring Power of Attorney. Lasting Powers of Attorney are therefore more expensive. The Lasting Power of Attorney also has to be registered with the Office of the Public Guardian before it can be used.

There are two types of Lasting Power of Attorney, one which deals with health and welfare, and one which dealsi with property and your affairs.

The document will require you to set out who you wish to become your attorney and hwo you want them to act on your behalf, confirmed by a certificate provider - someone with the relevant skills who can confirm that, in their popinion, you understand what it means and the effect of signing it. This could be a GP, for example, and they must have discussed the implications of the LPA with you without the attorney(s) being present. Your attorneys must then also formally confirm that they understand their responsibilities by signing. Your signature and that of your attorney must be witnessed.

Enduring Power of Attorney

An Enduring Power of Attorney allows you to choose someone to manage your affairs even if you become temporarily or permanently physically or mentally incapable of managing your own affairs e.g. from illness, disability or accident. For an Enduring Power of Attorney to be valid, you must be fully aware of the implications of the arrangement at the time you make it. So, it is too late to consider making an Enduring Power of Attorney if the person concerned is already mentally incapable.

When the donor has lost capacity to manage their affairs, the "attorney" should register the Enduring Power of Attorney so the Court of Protection and its administrative office the Office of the Public Guardian can oversee the attorney's actions.

Enduring Powers of Attorney can cover managing shares and selling a property, as well as the day-to-day management of a person's financial affairs.

Since October 2007 it is no longer possible to make an Enduring Power of Attorney. A Lasting Power of Attorney is the name of the new way to achieve the same thing.

Any Enduring Power of Attorney made before the end of October 2007 are still valid but if you want to make changes you will need a new Lasting Power of Attorney drawn up.

The Court of Protection

If someone became mentally incapacitated without first granting an Enduring or Lasting Power of Attorney, the matter can be taken to the Court of Protection. The court may then allow someone to manage the person's finances for them. This person is known as a "Deputy", and must keep accounts and report to the Office of the Public Guardian. Often this person is a close relative, but the court can appoint other people such as lawyers.

The Court of Protection requires a medical report before an application for deputyship can be made and charges an annual fee for supervising the deputy's work.

Costs

Charges for drawing up a Lasting Power of Attorney depend on how complicated your Lasting Power of Attorney may be. Please contact me to obtain a VAT free estimate.

More information

If you would like to discuss making a Lasting Power of Attorney please contact me.