Introduction to the Lasting Power of Attorney |
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Michael King gives an introduction to the Lasting Power of Attorney
A power of attorney is a deed whereby one person empowers another to act for him either generally or for specified purposes. The person who gives the power is called the ‘donor’ and the person to whom the power is given is the ‘attorney’. Powers of attorney are governed by the Powers of Attorney Act 1971 and an important feature of powers that are governed by the 1971 act is that if the donor loses the mental capacity to manage his affairs he is deemed as being no longer capable of delegating powers to the attorney and so the power of attorney is automatically revoked and the attorney can no longer act for the donor.
Enduring Powers of Attorney
The Enduring Powers of Attorney Act 1985 introduced enduring powers of attorney (EPAs) which differ from powers governed by the 1971 act in that they are not revoked if the donor becomes mentally incapable so that the attorney can continue to represent the donor, but only if the EPA is registered with the public guardian as soon as the donor loses capacity. EPAs were discontinued by the Mental Capacity Act 2005 and since the act came into force on 1 October 2007 it has no longer been possible to create an EPA although EPAs validly executed before 1 October 2007 continue to be valid.
Lasting Powers of Attorney
The Mental Capacity Act 2005 introduced lasting powers of attorney (LPAs) to replace EPAs. There are two kinds of LPA: those in respect of property and financial affairs and those in respect of health and welfare. Property and financial affairs LPAs fulfil a function similar to EPAs. Health and welfare LPAs fulfil a function similar to advanced decisions and ‘living wills’ in that they give attorneys the authority to make decisions abut the donor’s personal welfare and this includes giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care.
One important feature of both property and financial affairs LPAs and health and welfare LPAs is the requirement for a ‘certificate provider’ to certify that the attorney understands the purpose of the LPA and the scope of its authority and that there is no fraud or undue pressure being used to induce the donor to create the LPA. A certificate provider can be any person (other than a member of the donor’s family) who has known the donor for at least two years or a person whose professional skills enable him to make the judgements necessary to certify those matters, such as a doctor, solicitor, social worker or mental capacity advocate.
As well as appointing a certificate provider a donor must also consider whether to nominate at least one person to be notified of the registration of the LPA. This is to enable the persons who are notified to object to the registration of the LPA. Objections can only be on the grounds prescribed in the legislation. If nobody is nominated to be notified of registration of the LPA the donor is required to appoint two certificate providers.
Making a Lasting Power of Attorney
To make a LPA a donor must have the mental capacity to do so. He or she needs to start by making decisions regarding the following matters:
• Whether to make two LPAs, one for property and financial affairs and one for health and welfare or whether to make one LPA only.
• Who to appoint as attorney.
• Whether to appoint replacement attorneys.
• If two or more attorneys are to be appointed are they to act jointly or jointly and severally?
• Who is to provide the certificate?
• Who is to be notified of the registration of the LPA?
• Is any guidance to be given to the attorneys?
• Are there to be any restrictions on the attorney’s powers?
Procedure
The LPA must be in the prescribed form. The form is in three parts which are colour coded. Part A is blue. It must contain information about the donor, the attorneys and the person to be notified. It may also contain details of any restrictions or guidance to the attorneys that the donor wishes to include and if the attorney is a professional attorney it is likely that it will contain a provision for charging professional fees. In a health and welfare LPA there is in addition a section where the donor must state whether or not the attorney is to have the authority to accept or refuse life sustaining treatment.
Part A must be signed by the donor as a deed which means that the signature must be witnessed. Part B which is green is completed and signed by the certificate provider who must state the basis on which he is acting as certificate provider i.e. either that he has known the donor for at least two years or his professional designation and the particular skill or expertise that enables the certificate to be given. Part C is yellow and it must be signed by the attorney and the signature must be witnessed.
In addition to the LPA form itself an application form for registration must be completed and signed by the person applying for registration of the LPA. This will contain the same information as the LPA form, so it is of the utmost importance that there are no discrepancies between the two forms. Either the donor or the attorney may apply for registration. When persons are being notified of the registration of the LPA a notice of intention to apply for registration of the LPA must be served on them. The notice is a form signed by the applicant for registration and it contains information about the donor and the attorney and the date on which the LPA was signed by the donor. It also states that the recipient of the notice may object to registration of the LPA on any of the grounds which are set out in explanatory notes that are included in the form.
The application to register the LPA is ready to be submitted to the Office of the Public Guardian after the LPA has been signed by the donor, the certificate provider and the attorney, notice of intention to apply for registration of the LPA has been served and the application form has been completed and signed by the applicant for registration. The registration fee is £130, so if a donor has made both property and financial affairs and health and welfare LPAs two separate applications must be submitted for which the total registration fees will be £260. The registration fee can be waived if the donor is receiving certain specified benefits. If the donor is not receiving any of these benefits he may still be eligible for a 50% remission of the fees if his income is less than £12,000 per year.
Registration
A LPA is ineffective unless it is registered with the Office of the Public Guardian, so all LPAs must be registered before they can be used. Upon receiving an application the Office of the Public Guardian must wait for a statutory period of six weeks from the date of service of the notice to enable the recipient of the notice to object to the registration of the LPA. If no objection is received within the period the LPA is then registered and is stamped on every page with the stamp of the Office of the Public Guardian. In reality, however, the time between service of the notice and registration is considerably longer than six weeks because of a backlog of work in the Office of the Public Guardian. After registration the LPA is sent to the person who applied for registration. Property and financial affairs LPAs can be used immediately after registration but health and welfare LPAs have an inbuilt restriction whereby they cannot be used until the donor loses mental capacity.
November 2012
Disclaimer:
A power of attorney is a deed whereby one person empowers another to act for him either generally or for specified purposes. The person who gives the power is called the ‘donor’ and the person to whom the power is given is the ‘attorney’. Powers of attorney are governed by the Powers of Attorney Act 1971 and an important feature of powers that are governed by the 1971 act is that if the donor loses the mental capacity to manage his affairs he is deemed as being no longer capable of delegating powers to the attorney and so the power of attorney is automatically revoked and the attorney can no longer act for the donor.
Enduring Powers of Attorney
The Enduring Powers of Attorney Act 1985 introduced enduring powers of attorney (EPAs) which differ from powers governed by the 1971 act in that they are not revoked if the donor becomes mentally incapable so that the attorney can continue to represent the donor, but only if the EPA is registered with the public guardian as soon as the donor loses capacity. EPAs were discontinued by the Mental Capacity Act 2005 and since the act came into force on 1 October 2007 it has no longer been possible to create an EPA although EPAs validly executed before 1 October 2007 continue to be valid.
Lasting Powers of Attorney
The Mental Capacity Act 2005 introduced lasting powers of attorney (LPAs) to replace EPAs. There are two kinds of LPA: those in respect of property and financial affairs and those in respect of health and welfare. Property and financial affairs LPAs fulfil a function similar to EPAs. Health and welfare LPAs fulfil a function similar to advanced decisions and ‘living wills’ in that they give attorneys the authority to make decisions abut the donor’s personal welfare and this includes giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care.
One important feature of both property and financial affairs LPAs and health and welfare LPAs is the requirement for a ‘certificate provider’ to certify that the attorney understands the purpose of the LPA and the scope of its authority and that there is no fraud or undue pressure being used to induce the donor to create the LPA. A certificate provider can be any person (other than a member of the donor’s family) who has known the donor for at least two years or a person whose professional skills enable him to make the judgements necessary to certify those matters, such as a doctor, solicitor, social worker or mental capacity advocate.
As well as appointing a certificate provider a donor must also consider whether to nominate at least one person to be notified of the registration of the LPA. This is to enable the persons who are notified to object to the registration of the LPA. Objections can only be on the grounds prescribed in the legislation. If nobody is nominated to be notified of registration of the LPA the donor is required to appoint two certificate providers.
Making a Lasting Power of Attorney
To make a LPA a donor must have the mental capacity to do so. He or she needs to start by making decisions regarding the following matters:
• Whether to make two LPAs, one for property and financial affairs and one for health and welfare or whether to make one LPA only.
• Who to appoint as attorney.
• Whether to appoint replacement attorneys.
• If two or more attorneys are to be appointed are they to act jointly or jointly and severally?
• Who is to provide the certificate?
• Who is to be notified of the registration of the LPA?
• Is any guidance to be given to the attorneys?
• Are there to be any restrictions on the attorney’s powers?
Procedure
The LPA must be in the prescribed form. The form is in three parts which are colour coded. Part A is blue. It must contain information about the donor, the attorneys and the person to be notified. It may also contain details of any restrictions or guidance to the attorneys that the donor wishes to include and if the attorney is a professional attorney it is likely that it will contain a provision for charging professional fees. In a health and welfare LPA there is in addition a section where the donor must state whether or not the attorney is to have the authority to accept or refuse life sustaining treatment.
Part A must be signed by the donor as a deed which means that the signature must be witnessed. Part B which is green is completed and signed by the certificate provider who must state the basis on which he is acting as certificate provider i.e. either that he has known the donor for at least two years or his professional designation and the particular skill or expertise that enables the certificate to be given. Part C is yellow and it must be signed by the attorney and the signature must be witnessed.
In addition to the LPA form itself an application form for registration must be completed and signed by the person applying for registration of the LPA. This will contain the same information as the LPA form, so it is of the utmost importance that there are no discrepancies between the two forms. Either the donor or the attorney may apply for registration. When persons are being notified of the registration of the LPA a notice of intention to apply for registration of the LPA must be served on them. The notice is a form signed by the applicant for registration and it contains information about the donor and the attorney and the date on which the LPA was signed by the donor. It also states that the recipient of the notice may object to registration of the LPA on any of the grounds which are set out in explanatory notes that are included in the form.
The application to register the LPA is ready to be submitted to the Office of the Public Guardian after the LPA has been signed by the donor, the certificate provider and the attorney, notice of intention to apply for registration of the LPA has been served and the application form has been completed and signed by the applicant for registration. The registration fee is £130, so if a donor has made both property and financial affairs and health and welfare LPAs two separate applications must be submitted for which the total registration fees will be £260. The registration fee can be waived if the donor is receiving certain specified benefits. If the donor is not receiving any of these benefits he may still be eligible for a 50% remission of the fees if his income is less than £12,000 per year.
Registration
A LPA is ineffective unless it is registered with the Office of the Public Guardian, so all LPAs must be registered before they can be used. Upon receiving an application the Office of the Public Guardian must wait for a statutory period of six weeks from the date of service of the notice to enable the recipient of the notice to object to the registration of the LPA. If no objection is received within the period the LPA is then registered and is stamped on every page with the stamp of the Office of the Public Guardian. In reality, however, the time between service of the notice and registration is considerably longer than six weeks because of a backlog of work in the Office of the Public Guardian. After registration the LPA is sent to the person who applied for registration. Property and financial affairs LPAs can be used immediately after registration but health and welfare LPAs have an inbuilt restriction whereby they cannot be used until the donor loses mental capacity.
November 2012
Disclaimer: