Lasting Power of Attorney and Court of Protection
Specialist advice to deal with the affairs of mentally incapacitated individuals and appointing a power of attorney.
Have you thought about what would happen to your property and financial affairs if you lost mental or physical capacity, and who you would trust to act on your behalf?
A Lasting Power of Attorney gives someone else permission to manage your finances and property in the event that you develop a mental or physical condition that makes it harder for you to look after them yourself.
Without a Lasting Power of Attorney, relatives have to apply to the Court of Protection to become involved, something which can be a long and costly process. If someone becomes incapacitated without having a Lasting Power of Attorney in place, the Court of Protection can appoint a Deputy to look after their financial affairs.
At Weightmans, we'll guide you sensitively through the process of choosing attorneys, completing the necessary forms and registering a Lasting Power of Attorney.
Frequently asked questions
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What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which allows you to appoint one or more individuals (known as your 'Attorneys') to act on your behalf if you became incapable of making decisions for yourself. A Lasting Power of Attorney can be made and will be a valid document but must be registered with the Office of the Public Guardian before it can be used. We can deal with the registration process for you as part of our service.
There are two types of Lasting Power of Attorney:
- Property and Financial
- Health and Care
These are two separate documents and you could appoint different people if you wish.
As the authority given to your Attorneys is very wide-ranging, it is important to appoint someone you trust and who is well suited to the role that you are asking them to undertake.
What is a Property and Financial Lasting Power of Attorney?
This document gives your Attorney(s) the power to make financial decisions on your behalf, which could include (but is not limited to) managing your bank account(s), paying your bills, and selling your property. This document can be used with your consent if you have mental capacity and without your consent if you lack mental capacity.
What is a Health and Care Lasting Power of Attorney?
This document gives your Attorney(s) the authority to make decisions about your care and personal welfare if you lack mental capacity. This authority includes making decisions about your diet and daily routine, your medical treatment and where you live. You also have the option of whether to give your Attorney(s) the authority to make decisions on your behalf about the acceptance or refusal of life sustaining treatment.
Your Attorneys cannot use a Lasting Power of Attorney to force medical professionals to administer a particular type of treatment.
What happens if I do not make a Lasting Power of Attorney?
A Lasting Power of Attorney can only be made whilst you have the required mental capacity. If you no longer have mental capacity, your friends or family members would have to apply to the Court of Protection to be appointed as your 'Deputy' to be authorised to make decisions relating to your property and financial affairs. A Deputy would carry out the same role as an Attorney, however, in that case, you would have no control over who is appointed or when and how they can act. The Court of Protection process is longer and more costly than the preparation and registration of a Lasting Power of Attorney. A Deputy also has additional duties to report to the Court of Protection on an annual basis with additional supervision fees payable to the Court and insurance costs to pay for the required annual insurance policy.
The Court of Protection will rarely agree to appoint a Deputy to generally make decisions about your health and welfare, preferring one off application to make specific decisions. By its very nature, this type of application is often expensive.
Can I cancel my Lasting Power of Attorney if I change my mind about who I want to act?
A Lasting Power of Attorney (or an Enduring Power of Attorney made under the previous system) can be cancelled at any time provided you have mental capacity. If you wish to change your Lasting Power of Attorney in the future, you cannot amend an existing document and as such, you would need to create a new one.
Can I have more than one Attorney?
You can choose more than one Attorney to act on your behalf If more than one Attorney is appointed, you can also choose how you would like them to work together. You can choose to appoint them jointly, jointly and severally or jointly in respect of some decisions and jointly and severally in respect of other decisions.
You can also appoint one or more 'Replacement Attorneys' who would act if your original Attorneys became unable to act due to their own mental incapacity, death, bankruptcy, divorce (in the case of a spouse who is an attorney) or unwillingness to act.
The powers conferred on your Attorneys are very wide, so it is important to choose people you trust to act in your best interests.
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- What is a Lasting Power of Attorney?