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Powers of Attorney and Court of Protection

Lasting Power of Attorney

The Mental Capacity Act 2005, which came to force on 1st October 2007, has changed the way decisions are made for persons lacking mental capacity.

Any existing Enduring Power of Attorney still continues to be valid and can be used as previously. Similarly, as and when registration needs to take place this also can be done.

The following is in relation to those parties considering entering into a Power of Attorney from 1st October 2007, or considering revoking their existing Enduring Power of Attorney and replacing them with one of the following:-

A Lasting Power of Attorney can take two forms:

• Administering of property and affairs
• Confirming welfare and health care decision making powers
• You can have both

An Attorney, who is the person that you wish to appoint, maybe a family friend, friend or professional person who must be an adult.

There are separate forms for each type of Lasting Power of Attorney. In brief the Attorney’s powers are:-

• Property and affairs – if no restrictions are made in the form the Attorney can have full decision making authority once the Lasting Power of Attorney is operative in relation to all your property and financial affairs
• Personal welfare – if there are no restrictions on the form the Attorney will have authority to make decisions in all aspects of your personal care including social well being i.e. where to live or with whom to have contact together with health care and medical treatment.

What is an important difference from the previous Enduring Power of Attorney is that a Lasting Power of Attorney will not become operative until it has been registered with the Guardianship Office. The Lasting Power of Attorney for property and affairs, if registered before the onset of incapacity, maybe used from that point onward unless there are restrictions on the same. However, no Lasting Power of Attorney for personal welfare maybe used unless or until the donor has become incapacitated, whenever it is registered

The new forms which are required to complete either one or both of the above Lasting Power of Attorney’s are significantly longer and hence more detailed and complicated than the previous Enduring Power of Attorney.

Carr & Co can guide you through the process and ensure they are completed appropriately and registered at the Public Guardianship Office.

Court of Protection

If you have not granted a Lasting Power of Attorney but become mentally incapable and unable to deal with your own affairs, but nevertheless your financial affairs need to be dealt with, a Receiver may be appointed to act by the Court of Protection. This can be a lengthy process as the Court of Protection are required to ensure that the Receiver is an appropriate person to carry out that duty and is generally more expensive than where a Lasting Power of Attorney has been granted.

The appointing of a Receiver however may be essential if it necessary to sell your property.

Carr & Co offer safe and sound advice to those who require assistance in all the above areas. Contact us further to arrange an appointment at your convenience and a home visit can be arranged.