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Powers of Attorney and Court of Protection

Lasting Powers of Attorney (LPAs) and Court of Protection

Introduction

An LPA enables a person to choose someone (the Attorney) that they trust to make decisions and take actions on their behalf, either now or in the future when they either lack the mental capacity to make decisions for themselves, or they no longer want to make those decisions.

The decision should be about the person’s property and financial affairs or about their health and welfare.

It may also be a consideration for a relative of yours who sadly because of illness, accident or just plain old age, is starting to lose the ability to make decisions for themselves.

If someone has become incapable of making their own decisions and they have not made a Power of Attorney, it may be necessary for a relative or close friend to apply to the Court of Protection to be appointed on their behalf to make decisions for them.

Glazer Delmar can offer a wide range of help and advice in all matters concerning Powers of Attorney and the Court of Protection. We outline some of the issues below and give some idea of how we can be of assistance.

Lasting Powers of Attorney

It is possible to make two different types of Lasting Power of Attorney. The first is called a Property and Affairs Power and the second is called a Health and Welfare Power.

The Property and Affairs Power LPA is to enable your attorney to deal with financial matters on your behalf, or at your request. This could include, for example, the buying and selling of property, dealing with your bank account, claiming benefits, paying bills.

The Health and Welfare Power LPA is to authorise your attorney to make decisions about your welfare. This could include, for instance, decisions about where you live, consent to or refusal of medical treatment and decisions about day to day care.

The Heath and Welfare LPA can only be used if you no longer have the capacity to make the particular decision regarding your health or personal welfare and circumstances.

You can include restrictions and guidance for your attorneys within the LPA documents.

You may choose to appoint one attorney or more than one. If you appoint more than one attorney, you can either appoint them to act jointly together and all decisions must be taken together or you can appoint them to act jointly and severally. This means they can act on our behalf either together or independently. We can discuss with you the best way in which to appoint your chosen attorney.

Registration of Lasting Powers of Attorney

For the LPA to be used it must be registered with the Office of the Public Guardian, which is the administrative arm of the Court of Protection. Your attorney will not be able to use the LPA until the registration process is complete. If your attorney needs to act on your behalf urgently whilst the registration process is completed, we can advise you how that can be achieved. We can also deal with the registration process on your behalf if you wish.

General Powers of Attorney

It is possible for a person who can make their own decisions to create a straight forward legal document appointing a third party to deal with their financial affairs on their behalf. This is called a General Power of Attorney. It is done on a temporary basis, usually because a person will be out of the country or in hospital. A General Power of Attorney will not be valid if the person making the document starts to lose capacity.

Enduring Powers of Attorney

Although it is no longer possible to make an Enduring Power of Attorney many people do still have these documents and they remain valid. An Enduring Power of Attorney is limited to financial affairs. If a person who has granted an Enduring Power of Attorney starts to lose capacity, it is necessary to register the Power of Attorney with the Office of the Public Guardian. Again, we can assist you with the application for registration.

Court of Protection

If someone is unable to make decisions for themselves either about their finances or about their welfare it is possible for a relative or close friend to apply to the Court of Protection to be appointed as their deputy. A Deputyship Order gives the applicant the power to act on behalf of the person who has lost their mental capacity. The person appointed as the deputy will work with the Court of Protection to ensure that the needs of the incapacitated person are met as far as possible.

We can advise you of the correct circumstances in which to make an application to the Court of Protection and assist you with an application.

If there is no suitable relative or close friend who can take on this responsibility then it is possible for our Senior Partner, Michael Glazer, to be appointed in this role.

If you are appointed as a Deputy then you will receive a Court Order which sets out your specific powers with regard to the person who lacks capacity. The powers granted by the Court will take into consideration the specific needs of the individual to whom the order relates and may apply to any aspect of the person’s life, including their finances, personal welfare and consent to medical treatment.