You, a friend or a relative, might have already made a Power of Attorney. A Power of Attorney allows the donor – the person creating the document – to appoint someone else – an attorney – to make decisions for them if they are not able to make decisions themselves. Someone might need help from their attorney only on a temporary basis, perhaps while they are recovering from ill health, or over the longer term. Whether a Power of Attorney has been registered with the Office of the Public Guardian will usually determine whether an attorney can act immediately. The timing of that registration can vary somewhat depending on the type of Power of Attorney concerned.
There are several different types of Powers of Attorney. If you think that you or a loved one might have prepared one in the past, it’s sensible to check what type of Power of Attorney is in place; ensure a copy is where you can easily find it and that you know where the original is safely stored.
Enduring Powers of Attorney & Registration
Up until 1st October 2007 you or a loved one might have created an Enduring Power of Attorney (an EPA). It is no longer possible to create new EPAs, but those that were correctly prepared before that date are valid. EPAs were quite simple documents, just a few pages long. They allow an attorney to step into the donor’s shoes and act on their behalf in relation to their financial affairs.
Provided the EPA does not include a restriction, an attorney can act even if the donor can still make decisions themselves, with their permission. For example, you or a loved one might find it physically difficult to deal with certain tasks or, now, you or they may be taking care to self-isolate. Having the attorney’s support could provide great peace of mind.
If the donor is beginning to lose capacity to make decisions about their finances, then the attorney must arrange to have the EPA registered with the Office of the Public Guardian. The loss of capacity is the trigger for registration. This registration process is compulsory and it ensures that the attorney can go onto act with the right authority. The process usually takes about 8 – 10 weeks.
Lasting Powers of Attorney & Registration
If you or a loved one created a Power of Attorney on or after 1 October 2017, then this would have been a Lasting Power of Attorney (an LPA). There are two types: an LPA for property and affairs and an LPA for health and welfare matters.
As long as the property and affairs LPA does not contain a restriction, the attorney can act with the donor’s permission even if they have capacity to make their own financial decisions. If the donor loses capacity to make their own decisions, the attorney can continue to act on their behalf.
In contrast, an attorney is only able to make decisions for the donor under a Health and Welfare LPA if the donor lacks capacity to make those decisions themselves.
Importantly, for the LPAs to be valid and for the attorney to make any decisions at all on behalf of the donor, the LPAs must be registered with the Office of the Public Guardian - that is, regardless of whether the donor still has or lacks capacity to make their own decisions. Therefore, it is advisable to register an LPA as soon as it has been prepared. Then, whenever it’s required it is ready, waiting and valid to use. If you or a loved one has created an LPA which still needs to be registered so that it can be used, then we can guide you through that process.
Applying for a Deputyship Order
In order for someone to create LPAs (of either type) now, if they haven’t prepared one in the past, or they would like to prepare a new one to reflect a change in circumstances, they must understand the steps involved in creating the document: they must have capacity to create an LPA.
If that is no longer possible for a friend or relative of yours whom you’re concerned about, for example because of ill health or an accident, rest reassured that a path can still be followed to ensure that someone is appointed to act on that vulnerable person’s behalf. This would involve making an application to the Court of Protection to appoint a deputy under a property and affairs Deputyship Order. Again this is a process that we would be pleased to help you navigate.