Who will deal with things when you can no longer?
If you are worried that you might not be able to deal with things in the future because of ill health or simply old age then a Power of Attorney may help provide peace of mind.
Prior to October 2007 – Enduring Powers of Attorney
You may have heard of Enduring Powers of Attorney which are legal documents signed by a person ("the donor") authorising someone they trust to act on their behalf ("the attorney(s)") in relation to their financial affairs and property.
In order to validly set up an EPA the donor must have the necessary mental capacity to understand the nature and effect of the document they are signing. Unlike a normal Power of Attorney, an EPA is still effective if the donor later loses mental capacity and is no longer able to deal with their affairs.
Any EPAs made prior to the 1st of October 2007 are still valid and can be used by the appointed attorney(s) if and when necessary. If the donor loses mental capacity the attorney(s) are obligated to register the EPA with the Court of Protection at the current fee of £120.
The new system from October 2007
From the 1st of October 2007 it became no longer possible to make an EPA as the Mental Capacity Act 2005 came into force bringing with it a new form of Power of Attorney called a Lasting Power of Attorney (“LPA”).
A key difference between an EPA and an LPA is that the LPA comes in two forms. One in relation to property and affairs and the other covers decisions about the donor’s health and welfare including consent to medical treatment.
The new LPA, unlike an EPA, will have to be registered with the Court of Protection in order for it to be effective regardless of whether or not the donor has mental capacity. The current fee is £150.
Property and Affairs LPA
Like an EPA the new Property and Affairs LPA allows for the appointment of attorney(s) to make decisions in relation to all the donor’s property and financial affairs. Once the LPA is registered the appointed attorney(s) can use it immediately even if the donor still has capacity. To avoid this, the LPA can include a restriction that it is only to be used once the donor has lost mental capacity and is no longer capable of managing their own finances.
Personal Welfare LPA
Unless there are restrictions preventing it within the LPA the attorney(s) will have authority to make decisions on all aspects of the donor’s personal welfare. From decisions as to where the donor should live to making decisions about healthcare and medical treatment. The attorney(s) only have power to give or refuse consent to life sustaining medical treatment if this authority has been given to them expressly in the LPA. A Personal Welfare LPA can only be used once the donor is incapacitated and not before.
What happens where there is no EPA or LPA
Where a person loses mental capacity and there is no pre existing EPA or a Property and Affairs LPA, the Court of Protection may appoint a deputy to deal with a persons finances. This person would not be someone chosen by the incapacitated person and is a much lengthier and expensive process.
Where there is no Personal Welfare LPA decisions will be made by the medical professionals and/or carers of the incapacitated person who must act in accordance with their belief as to a persons’ best interests.
Who will deal with things when you can no longer?
Who do you trust to deal with your finances?
Who will make the best decision when deciding what you need?
Contact fwdlaw associates (Rebecca Goldsworthy) on 01633 660 440 for further details and advice.
