More Thoughts About Powers Of Attorney And Loss of Capacity

More Thoughts About Powers Of Attorney And Loss of Capacity

For those of us who are not getting any younger  [does that strike a chord with you?]  the statistic that a third of people aged 65 or over at death will be sufferers of a degree of Dementia makes very grim reading.

The arguments in favour of making a Power of Attorney in order to appoint trusted friends or family members to take a protective role, if mental capacity should be lost, are well known and I hope obvious.

There is no reason why a person should wait until mental health begins to deteriorate before preparing a Power of Attorney. Quite the opposite, the time to do this is as soon as possible and certainly before Mental Powers wane.

For this reason many fit and healthy people in their 30s and 40s have already made such Powers of Attorneys.

Any such Powers of Attorney made in England before October 2007 were called “Enduring Powers of Attorney” and they were very easy to make. The Enduring Power of Attorney remains in force after the Donor loses mental capacity and the appointed Attorney can deal with all the financial and property matters of the “Patient” thereafter subject to certain registration formalities.

However an Enduring Power of Attorney does not act to delegate responsibility for Health and other such Welfare concerns which therefore remain a matter for Medical Professionals or Social Workers without the benefit of any responsible Attorney to give instructions.

Since October 2007 the Authority document in England is called a “Lasting Power of Attorney” [LPA] and can be made in two parts, – one to deal with Finances and one to deal with Health and Welfare issues.

If a person loses mental capacity without having made an LPA, their relatives or close friends can still try to help, but would need to make a successful application to the Court [the Guardianship Office] which costs a lot of time and money. If different persons in opposition to each other make similar applications, the case can even become a form of contest and the Court has to make a ruling after perhaps a very expensive course of deliberation.

One point I would just highlight since it has come to my notice very recently is that when you make a new Lasting Power of Attorney in order to take advantage of the ability to appoint a Health and Welfare attorney, you should consider –have you already made an Enduring Power of Attorney in or before 2007?  Difficulties can arise when Patients lose mental capacity and it is found that they made an Enduring Power of Attorney before 2007 and also Lasting Power of Attorney after 2007 and, by those two equally valid documents, appointed two different Attorneys.

So, just as a Will should state that it is intended to revoke earlier wills, so a Lasting Power should for clarity and the avoidance of argument, state whether or not it is intended to revoke any earlier EPA or whether two Attorneys are expected to work alongside each other.

If you would like to draw up an LPA, please get in touch and I will put you in contact with a specialist Solicitor who can take your instructions. And of course, when you are signing a foreign LPA equivalent, I can notarise it as necessary. As ever, please do contact me whenever I can assist whether for a document in front of you, or just for a general chat (Louise and I are friendly and approachable! Truly!). notary@atkinsonnotary.com or +44 (0)113 816 0116

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