Introduction

A Power of Attorney is a document by which one person (the "Donor") gives another person or people (the "Attorney") power to run his or her financial and/or personal affairs. It may be general, (entitling the Attorney to do almost everything the Donor could do) or it may be limited to certain aspects (eg. the sale of the Donor's house). Since 1 October 2007, Lasting Powers of Attorney have replaced Enduring Powers of Attorney but any Enduring Power made prior to 1 October 2007 will still be valid.

If an individual has not made an Enduring or Lasting Power of Attorney and becomes mentally incapable he may be made a Patient of the Court of Protection. This can be an expensive and cumbersome way of administering someone's finances and we, therefore, strongly recommend that all our clients have a Power of Attorney as mental incapacity can, of course, arise at any time as a result of illness or accident.

Unlike an ordinary Power of Attorney which ceases to have effect when the Donor loses mental capacity (just the moment when it may be most needed) a Lasting Power of Attorney is not revoked by the mental incapacity of the Donor, provided that the Power is then registered with the Office of the Public Guardian.

Practical considerations

We usually recommend the appointment of more than one Attorney in case one Attorney is not available at the time when action is required.

The identity of the Attorney is important as he or she must be absolutely trustworthy and able to handle the responsibilities which are being delegated. It would be possible to appoint named Partners in this firm to act as your Attorneys.

The law relating to the delegation of the duties arising under a trust by Power of Attorney is complicated. Generally, trustees (unless they happen also to be a beneficiary of the trust) may now only be able to delegate their functions by a Trustee Power of Attorney. Specific advice must be sought if a trustee wants to appoint an Attorney.

The donor's mental incapacity

If the Donor has an Enduring Power of Attorney, then as soon as the Attorneys are aware that the Donor is or may be becoming mentally incapable, they must apply to the Office of the Public Guardian to register it. The procedure involves the completion and delivery of specific forms (as a safeguard to the Donor) within strict time limits. Assuming that no successful objection to the registration of the Enduring Power of Attorney is made, the Attorneys will be able to run the Donor's finances.

If the Donor has a Lasting Power of Attorney, this may already have been registered by either the Donor or the Attorneys in which case the Attorneys can continue to act. If the Lasting Power has not been registered, the Attorneys will have to apply for its registration using a similar process to that for Enduring Powers of Attorney.

Information needed

Because of the far-reaching nature of a Lasting Power of Attorney, it is not something that should be done without first obtaining proper legal advice.

If you would like to have a Lasting Power of Attorney, please complete the Questionnaire (pdf file at this link) and then contact us to discuss your personal requirements with you. We will then prepare the necessary document.

For further advice contact our team direct or talk to your usual contact in the firm.