LASTING POWERS OF ATTORNEY
Whilst death is the province of Wills, a large number of people, as medical science helps us to live longer, are going to need help in the management of their financial and other affairs while they are still alive. It is possible for old people to give simple powers of attorney to their nearest and dearest to act for them, but these automatically cease to be of effect in the event of mental incapacity. In such a case application must be made to the Court of Protection for the appointment of a Receiver - a costly exercise in which the immediate family lose control of the assets of the appointor and requiring the regular preparation and submission of accounts.
During the 1980s Enduring Powers of Attorney were introduced. These survived the onset of mental illness so long as the document was registered with the predecessor of the Office of the Public Guardian at such stage. These worked well, but there was a perception that certain attorneys had been less scrupulous with the assets of appointors than they might have been.
The Mental Capacity Act 2005 has introduced the Lasting Power of Attorney. This is a bureaucrat's dream. It runs to many pages, it must be registered with the Office of the Public Guardian before it is effective and they have several weeks before they can reject it, which they regularly do on the grounds that one of over 100 boxes has not been ticked. It has been in place since October 2007 (at which date Enduring Powers of Attorney were no longer available) and the OPG charges £150 for considering - and often rejecting on trivial grounds - a document. The financial press has taken note of this issue and the OPG has stated to professional bodies that they will improve their performance. For the time being, this is the only type of Power of Attorney to survive the onset of mental incapacity. We are happy to provide this service.
The LPA can cover (a) Property and Affairs and (b) Personal Welfare or both. The Property and Affairs LPA is the most commonly used and we can advise on them, draft them and act as Certificate Providers. We can then attend to the registration. Personal Welfare LPAs are useful where, for example, a person is in the early stages of Alzheimers. They cover not only the ground of Living Wills, but also general matters of health and day-to-day living.