There are two separate types of Lasting Power of Attorney:
1. Health and Welfare, appointing an attorney to make decisions on your behalf on matters such as medical care and treatment; and
2. Property and Financial Affairs, appointing an attorney to make decisions for you about your property and finances, eg selling your home and managing your bank accounts.
Each type of Lasting Power of Attorney has its own form, which comprises sections relating to you, your attorney and limits on the power you are granting your attorney.
You can specify what type of decisions you authorise your attorney to make on your behalf, including any limits you want to set on the scope of those decisions. If you are appointing more than one attorney you must specify if the attorneys have to make decisions jointly or if they can act individually. You can also include guidance as to whether your attorney should be paid and how you want your attorney to make decisions for you, for example by considering factors such as your religious beliefs.
One of the safeguards built into the Lasting Power of Attorney is that you can name up to five people to be notified when an application is made to register the Lasting Power of Attorney (thereby making it valid for your attorney to use). The named person(s) should not be your attorney, but a third party who is interested in your welfare; he or she is given the opportunity to object to the registration of the Lasting Power of Attorney. There are various grounds for objection, which include a belief that the person making the Lasting Power of Attorney did not have the mental capacity to do so, that he or she was under undue pressure or influence and did not act with free will or that the attorney will not act in the best interests of the person making the Lasting Power of Attorney. The court will decide if the objection is valid and whether the Lasting Power of Attorney ought to be registered or not.
The Lasting Power of Attorney form also requires a certificate provider and we can fulfil that role. From our discussions and dealings with you we must be satisfied that you understand the purpose and scope of the Lasting Power of Attorney and that you have the "mental capacity" to make the Lasting Power of Attorney. In this instance mental capacity includes understanding information relevant to your decision to make the Lasting Power of Attorney, retaining that information, using it as part of your decision-making process and communicating your decision to us.
If during our meeting(s) we do not consider that we can provide the certificate we will let you know as soon as possible. In some circumstances, including if you are elderly, suffer ill health or believe your Lasting Power of Attorney may be challenged by a third party, we may require you to obtain a doctor’s opinion that you have sufficient mental capacity to understand the importance and effect of the Lasting Power of Attorney.
Finally, the attorney(s) must sign the form to confirm that he or she accepts the role of attorney and the duties and responsibilities it involves.
The Lasting Power of Attorney cannot be used until it has been registered at the Office of the Public Guardian. Clients often wish to register the Lasting Power of Attorney immediately upon making it so that the attorney can use the Lasting Power of Attorney straightaway. The application to register the Lasting Power of Attorney can be made by you or the attorney.
In order to register the Lasting Power of Attorney there are further forms to complete – an application form and a notice to each named person mentioned in Part A of the Lasting Power of Attorney. The application form must be sent to the Office of the Public Guardian with its registration fee (currently £82). As part of the registration process the Office of the Public Guardian will wait 5 weeks before completing the registration; this is to allow time for the named person to object to the registration.
In practice the registration usually takes 6-9 weeks as, in addition to the 5-week waiting period, the Office of the Public Guardian also requires time to process the paperwork. You should be aware therefore that making and registering a Lasting Power of Attorney does not provide immediate authority for your attorney to act on your behalf. For urgent issues we may have to discuss what alternative options are available and what immediate steps can be taken (during the registration process) to deal with any pressing problems.
Once the Lasting Power of Attorney has been registered the Office of the Public Guardian will return the original form to the person who made the application to register it. The form will be validated by the court’s stamp and ready for the attorney to use.