Powers of Attorney and Court of Protection
LASTING POWERS OF ATTORNEY (LPAs) & COURT OF PROTECTION
An LPA is a legal document that someone makes using a prescribed form. It enables that person to choose someone now (the Attorney) that they trust to make decisions and take actions on their behalf either now, or in the future when they either lack the mental capacity to make decisions for themselves, or they no longer want to make those decisions.
The decisions could be about the person’s property and financial affairs or about their health and welfare.
Giving someone authority to act on your behalf under an LPA is the only way in law that you can control who has the right to make decisions and take actions for you in the future, when you may not have the capacity to make decisions for yourself.
It may also be a consideration for a relative of yours who sadly as a result of illness, accident or just plain old age is starting to lose the ability to make decisions for themself.
If someone has become incapable of making their own decisions and they have not made a power of attorney then it may be necessary for a relative or close friend to apply to the Court of Protection to be appointed on their behalf to make decisions for them.
Glazer Delmar can offer a wide range of help and advice in all matters concerning Powers of Attorney and the Court of Protection. We outline some of the issues below and give some idea of how we can be of assistance.
Lasting Powers of Attorney
It is possible to make two different types of Lasting Power of Attorney. The first is called a Property and Affairs Power and the second is called a Health and Welfare Power.
The first type of LPA is to enable your attorney to deal with financial matters on your behalf, or at your request. This could include, for example, the buying and selling of property, dealing with your bank account, claiming benefits, paying bills.
The second type of LPA is to authorise your attorney to make decisions about your welfare. This could include, for instance, decisions about where you live, consent to or refusal of medical treatment, and decisions about day to day care. The Health & Welfare Lasting Power of Attorney can only be used if you no longer have the capacity to make the particular decision regarding your health or personal welfare and circumstances.
You can include restrictions and guidance for your attorneys within the LPA documents and we can advise you on any such requests.
You may choose to appoint one attorney or more than one. If you appoint more than one attorney you can either appoint them to act jointly together and all decisions must be taken together, or you can appoint them to act jointly and severally. This means they can act on your behalf either together or independently. We can discuss with you the best way in which to appoint your chosen attorneys.
Registration of Lasting Powers of Attorney
In order for the LPA to be used it must be registered with the Office of the Public Guardian, which is the administrative arm of the Court of Protection. Your attorney will not be able to use the LPA until the registration process is complete. If your attorney needs to act on your behalf urgently whilst the registration process is completed, we can advise you how that can be achieved. We can also deal with the registration process on your behalf if you wish.
General Powers of Attorney
It is possible for a person who is able to make their own decisions to create a straightforward legal document appointing a third party to deal with their financial affairs on their behalf. This is called a General Power of Attorney. It is done on a temporary basis, usually because a person will be out of the country or in hospital. A General Power of Attorney will not be valid if the person making the document starts to lose capacity.
Enduring Powers of Attorney
Although it is no longer possible to make an Enduring Power of Attorney, many people do still have these documents and they remain valid. An Enduring Power of Attorney is limited to financial affairs. If a person who has granted an Enduring Power of Attorney starts to lose capacity it is necessary to register the power of attorney with the Office of the Public Guardian. Again, we can assist you with the application for registration.
Court of Protection
If someone is unable to make decisions for themselves either about their finances or about their welfare it is possible for a relative or close friend to apply to the Court of Protection to be appointed as their deputy. A deputyship order gives the applicant the power to act on behalf of the person who has lost their mental capacity. The person appointed as the deputy will work with the Court of Protection to ensure that the needs of the incapacitated person are met as far as possible.
We can advise you of the correct circumstances in which to make an application to the Court of Protection and assist you with an application.
If there is no suitable relative or close friend who is able to take on this responsibility then it is possible for our senior partner, Michael Glazer, to be appointed in this role.
If you are appointed as a deputy then you will receive a court order which sets out your specific powers with regard to the person who lacks capacity. The powers granted by the Court will take into consideration the specific needs of the individual to whom the order relates and may apply to any aspect of the person’s life, including their finances, personal welfare and consent to medical treatment.