Powers of Attorney

Helen Smith, Wills and Probate solicitor of Lovedays Solicitors, discusses issues around powers of attorney.


Helen Smith Wills Probate Solicitor

The Formula 1 racing car driver, Michael Schumacher, came into the press again recently following a brief statement by his family. This news brought the issue of Powers of Attorney firmly into focus.

An individual has long been able to appoint another to act on his or her behalf as an attorney. Until the introduction of Enduring Powers of Attorney in 1985, however, such attorneyships were incapable of being used should the individual creating the Power (“the donor”) lose mental capacity. These are known as general or ordinary powers of attorney and are governed today by the Powers of Attorney Act 1971.

Following the introduction of the Enduring Powers of Attorney Act 1985, it became possible for an individual to create a Power of Attorney document that subsisted or ‘endured’ beyond their loss of capacity. This was of enormous value and, arguably, of more use than an ordinary Power of Attorney. The reason for this is that, precisely when an individual lost the ability to manage their affairs, the attorney’s authority to act under that latter document would cease.

Unfortunately, it soon became clear that Powers of Attorney of this nature were open to abuse by more unscrupulous attorneys, as they did not need to be registered and therefore were not under the radar of the Public Guardian (whose office oversees the affairs of those who lack capacity), until such time as the donor had become, or was becoming, mentally incapable. It was deemed that a more rigorous registration process needed to be introduced. As a result, Lasting Powers of Attorney were born and came into play in 2007, under the governance of the Mental Capacity Act 2005 and the newly created Office of the Public Guardian.

Lasting Powers of Attorney, like Enduring Powers of Attorney, subsist beyond the loss of mental capacity, but cannot be used by an attorney until they are registered by the Office of the Public Guardian. In order to be registered, an impartial individual, like a solicitor or G.P., is required to certify that the donor has the necessary mental capacity to create the Lasting Power of Attorney, and that no undue influence or coercion is being used to force the donor to create the Power against their will. This is an important safeguarding step.

It also became possible under the new regime to create not only Powers of Attorney to deal with financial affairs, but also health and welfare issues (which includes an option for the donor to choose whether an attorney can consent to, or refuse, life sustaining treatment on their behalf). A further advantage of the new Lasting Powers of Attorney is that a donor can choose to allow their attorneys to act on their behalf even while they have mental capacity (and therefore operate more as a general power of attorney). Under these circumstances, there is an added protection that an attorney can only act with the donor’s consent.

However, as the case of Mr. Schumacher highlights, Lasting Powers of Attorney are not just for the elderly. Incapacity can strike at any time of life. Having the foresight to create a Lasting Power of Attorney at the earliest opportunity will ease the strain (and potential financial burden) on family, particularly where assets are held in the donor’s sole name and access to them is needed for much needed capital or income to cover care or day-to-day fees in the event of an illness or catastrophic accident in earlier life.

There are not many alternatives for circumstances where an individual loses mental capacity and does not have a Power of Attorney in place. Generally, an application would then need to be made to the Court of Protection for a Deputy to be appointed.

Lovedays Solicitors can advise on the creation of both Ordinary and Lasting Powers of Attorney, and on the registration of pre-existing, and still valid, Enduring Powers of Attorney. Where it has unfortunately become impossible for an individual to create a Power of Attorney, we can advise, assist and support you through the Court of Protection process.

If you would like to find out more details or wish to make an appointment to discuss a Power of Attorney then please contact us on 01629 56660 or make a Free Online Enquiry.

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