Top Tip – Powers of Attorney – CII R05, J02, AF1, AF5
We all know what a Power of Attorney is; it’s someone appointed by you to look after your affairs should you become unable to do so. Although sometimes you may want to appoint someone to do something on your behalf, because you are out of the country or you just would prefer someone else to do it!
Under the old pre 2007 regime, we had enduring powers of attorney. It was a fairly simple process to set one up and lots of people at the time were encouraged to ‘get in quick’ before they were no longer available in October of that year. (Although they were simpler they didn’t have any of the protection that was later put in place with LPAs).
If the person subsequently lost capacity, then the attorney had to register the EPA with the Office of the Public Guardian and once registered they could deal with that person’s affairs.
It’s not possible to make any changes to an existing EPA or make a new one, but you can still of course register one should you become mentally incapacitated.
Following the Mental Capacity Act 2005 which came into effect on the 1st October 2007, the Lasting Power of Attorney was introduced.
A different process exists with the LPA in that you now have to register it with the court even if the person still has mental capacity and there must also be a certificate from prescribed people who can confirm that the person understands the LPA and there has been no undue pressure put on them. In other words it acts as a safety net for those people who can be vulnerable.
With an LPA there are two types of power – the first one is like the old EPA, a property and financial affairs LPA which is self-explanatory; the attorney looks after the person’s finances.
The second one was new – the health and welfare LPA – which allows the attorney to make decisions on behalf of that person regarding their welfare, such as where they might live to allowing or refusing medical treatment. A personal welfare LPA can only be used once it’s been registered and the person has become mentally incapable of making those decisions themselves.
According to the Alzheimer’s Society, more than 1 million people in the UK will have dementia by 2025 and 1 in 5 people over 85 already suffers from it. With the most simplest of tasks becoming virtually impossible to do, it seems that a little bit of planning ahead to get a power of attorney in place is not a bad idea for all of us.
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