WILLS AND PROBATE
LASTING POWER OF ATTORNEY
From the 1st October 2007, Lasting Powers of Attorney can be created for property and affairs or personal welfare.
The Mental Capacity Act provides not only for those who lack decision making capacity, but enables people to maintain their own decision making capabilities where possible.
Drawing up a Lasting Power of Attorney allows people to retain a measure of control over future decisions taken on their behalf, and also helps to ensure that such decisions reflect what they themselves would have decided, had they been capable of doing so.
The Lasting Power of Attorney must be in writing in one or other of the forms prescribed by the Lasting Powers of Attorney and Public Guardians Regulations 2007. The choice of Attorney is completely personal to the Donor and there is the option to appoint replacement Attorneys should one or all of the primary Attorneys not be able to act for whatever reason.
The document must also include a certificate signed by an independent person of a prescribed description which includes professionals, such as solicitors. There is specific guidance as to who can be a certificate provider.
A Lasting Power of Attorney cannot be used until it has been registered with the Public Guardian but may be revoked at any time if the Donor changes his/her mind and still retains the capacity to make his/her own decisions.
It is no longer possible to make an Enduring Power of Attorney
For Enduring Powers of Attorney already in existence before the 1st October 2007, the document will continue to be valid and the Attorney(s) appointed in them will still have authority to manage the Donors property and financial affairs.
An Enduring Power of Attorney will need to be registered by the Attorney(s) with the Court of Protection if the Donor begins to lack decision making capacity.
Court appointed deputies
Where the Court believes that there is a need for on-going decision-making powers for a person lacking capacity to make welfare and/or financial decisions, it may appoint a Deputy to make such decisions on the persons behalf - if it is in the best interests of the incapacitated person. The Court will decide the extent of power it wishes to give a Deputy and will specify the particular decisions or actions that the Deputy is authorised to take, the powers available to him/her and the duration of the appointment.
A Deputy appointed by the Court must consent to the appointment and be over the age of 18.
Such an application is usually made in the event that there is no existing Enduring or Lasting Power of Attorney already in place at the time the person had decision making capacity.
Statutory wills
Where a person lacks decision making capacity, an application may be made to the Court of Protection for the execution of the Will for that person.
Such an application may be made by any person who is dependant on the person who lacks capacity or who may become a beneficiary or are attorneys under a Registered Enduring or Lasting Power of Attorney.
For more information please contact the Wills and Probate department on 01494-782291 or email the Team.
