POWER OF ATTORNEY – All you need to know……
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To arrange your Power of Attorney or Will
please call Martin Engleman on 01268 76 10 22 or 079 019 487 45
‘I offer a Power of Attorney home visit service that is friendly and informal, and conducted with sensitivity, patience and clear explanations of the beneficial arrangements available. I very much look forward to being of service to you’
Martin Engleman AIPW AFPC DipPFS Certs CII (MP & ER)
Principal Engleman Wills + Powers of Attorney + Probate + Equity Release
Estate Planning Legal Specialist with APS Legal & Associates Ltd
Qualified Associate of The Institute of Professional Will Writers
Engleman Wills + Powers of Attorney + Probate + Equity Release On behalf of APS Legal & Associates Ltd, Head office: Worksop Turbine Innovation Centre, Shireoaks Triangle Business Park, Coach Close, Worksop, Nottinghamshire, S81 8APAPS Legal & Associates is a member of the Institute of Professional Willwriters
APS Legal & Associates complies with the Trading Standards Institute Approved IPW Code of Practice
Click on logo above for link to IPW website
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The Office of the Public Guardian (OPG) is the body that administers applications for Lasting Powers of Attorney and their approval and registration
A Power of Attorney is a legal arrangement which a person (the Donor) makes, giving people they trust, the Attorney(s), the power to make decisions on behalf of the Donor at a future date should they lack the mental capacity to make those decisions themselves.
Authority can similarly be arranged for your Attorney(s) to look after your property and financial affairs, not only when you lack mental capacity, but also when a physical disability, eg arthritis or a stroke, prevents you from signing cheques and forms relating to your banking transactions or DWP benefits claims.
Capacity of Donor
As with Wills, the OPG rules lay down that the Donor must clearly understand the nature of the Power of Attorney arrangement, and be clear in their choice of the parties involved, see below. Should the Donor have Alzheimer’s or dementia, a straightforward Power of Attorney application is not possible, since the Donor would not have the capacity to sign the instructions and the engrossed Power of Attorney documentation.
IMPORTANT !
If the Donor’s capacity to arrange an Power of Attorney does not exist, Social Services, GP, close family members and the OPG would then be involved in a very protracted and frustrating process,
SEE PRESS ARTICLE click to view.The process involves an application to the OPG / Court of Protection to appoint a deputy to act on behalf of the person when there is no Power of Attorney in place. The
FEES click to view are startling: the initial application fee can be up to £3,000 to complete the deputyship application. The Court also supervises actions taken by the deputy whom it appoints, and management fees can be £3,000 per annum.
Choice of Attorneys
The Donor must be aged 18 or over with the capacity to make a Power of Attorney. Any named individual with mental capacity aged 18 or over can be an Attorney as long as the relevant details are correctly written on the Power of Attorney Form.
IMPORTANT !
It is common, but not necessarily prudent, to appoint each party of a couple to be mutual Attorneys for each other. Putting a Power of Attorney into place acknowledges that one or both of the couple could in the future lose their mental or physical capacity. Should this happen, they then could not perform their duties as an Attorney for each other. The Power of Attorney arrangement would then collapse for the other partner, and would need to be re-applied for and re-registered afresh at the OPG, incurring further fees and delay.
The solution is instead to appoint outside parties as your Attorneys, ie your adult children/grandchildren or nephews/nieces, or close friends of those same age groups.
Reserve Attorneys however should always be appointed, who could step in to replace an incapacitated or deceased Attorney, without a new application being required by the OPG.
Types of Power of Attorney
The Property and Affairs Power of Attorney
This type of Power of Attorney allows the Attorney to manage the Donor’s finances and property whilst the Donor still has the capacity to make decisions for themselves. Donors may include a restriction that the Power of Attorney may only be used at some time in the future when they lack the capacity to make decisions for themselves, for example, as a result of a brain injury or the onset of dementia.
The Attorney for this type of Power of Attorney must not be bankrupt when the Power of Attorney is signed. A subsequent bankruptcy could result in the Power of Attorney being automatically revoked if it has been registered with the Office of the Public Guardian (OPG).
The Health and Welfare Power of Attorney
This type of Power of Attorney authorises the Attorney to make decisions about the Donor’s personal welfare and can be used only when the Donor lacks the capacity to make decisions.
Restrictions or conditions
A Power of Attorney may have limits on the decisions the Attorney can make, for example with regard to where the Donor lives or the ability to sell the Donor’s house. The Power of Attorney may include guidance about the Donor’s wishes and feelings. The Attorney should take account of guidance.
The Donor may appoint more than one Attorney, either to act together (all must agree), or together and independently (can act together or anyone can decide). It is very important for Attorneys to discuss decisions, where relevant, before making them to avoid conflicts during the operation of the Power of Attorney.
A Power of Attorney can be made at any time, but cannot be used until it has been registered with the OPG. It is recommended that it is registered as soon as possible after being made, so that there will be no delay in being able to use it should the need arise.
A Power of Attorney is a powerful document and it is strongly recommended that applicants seek advice from somebody with relevant qualifications and experience.
The Power of Attorney Form
The Power of Attorney form (instrument) is in three parts:
Part A – The Donor’s Statement. This sets out the Donor’s details, details of who is to be appointed Attorney and how he/she is to act. This part of the form can be used to place restrictions or conditions on the decisions the Attorney can make or give relevant guidance. The part can also be used to give the names of anyone to be notified (named persons) when the Power of Attorney is registered with the OPG.
Part B – The Certificate Provider’s Statement. A certificate provider is a person the Donor must select to complete a Part B Certificate in the Power of Attorney form. Only certain people can be certificate providers (details are listed on the form).
The certificate provider must speak with the Donor privately so as to be satisfied that the Donor understands the powers that are being given to the Attorney. The certificate provider must also be satisfied that there has been no fraud or undue pressure on the Donor to make the Power of Attorney.
Part C – The Attorney’s Statement. This section provides the Attorney’s personal details and understanding of the legal duties involved in the appointment.
The Mental Capacity Act 2005
This Act provides a statutory framework to empower and protect people who may not be able to make some decisions for themselves. Such people include those with dementia, learning disabilities, mental health problems, stroke or head injuries. It makes clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.
The Act covers major decisions about someone’s property and affairs, healthcare treatment or where the person lives, as well as everyday decisions about personal care or what someone eats, where the person lacks capacity to make those decisions.
Attorneys and other people who have a duty of care to someone lacking capacity must follow the following protocol:-
The Code of Practice
The Code of Practice supports the Act and provides guidance for people working with and/or caring for adults who lack capacity, including family members, professionals and carers. It describes their responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to do so themselves.
Duties and obligations of an Attorney under a Power of Attorney include:
- a duty of due care when making decisions on behalf of the Donor;
- to carry out instructions as required by the Power of Attorney;
- a duty not to delegate the Attorney’s powers under the Power of Attorney unless authorised to do so.
- not to benefit themselves but to benefit the Donor – this means avoiding conflicts of interest and in particular not to profit or acquire personal benefit from their position.
- a duty of good faith, which means acting with honesty and integrity.
- a duty of confidentiality; to keep the Donor’s affairs confidential unless the Donor has consented otherwise and specifically in relation to a property and affairs Power of Attorney:
- to keep the Donor’s money and property separate from their own.
- to keep accurate accounts on all of their dealings as Attorney.
Lasting Power of Attorney (LPA) PRE-MEETING INFORMATION/TERMS OF BUSINESS
The parties involved :
- Donor.
- Attorneys.
- Replacement Attorneys, to avoid the Power of Attorney s being null and void if the Attorneys pre-decease the Donor, resulting in a new Power of Attorney application being required.
- Optionally, since now no longer required by the OPG, a Notifiable Person, typically a close family member or friend, but who is not an Attorney or Replacement Attorney.
- Certificate Provider. Conveniently, my legal qualification permits me to fulfill this role.
- Witnesses. Again, conveniently, I can be a witness to signatories. Please note that if an Attorney or Replacement Attorney cannot attend, I can post the signatory pages to them for completing and witnessing locally, then posting back to me.
Initial Meeting
Following my having already provided Power of Attorney information to all interested parties, typically the Donor’s (Client’s) adult children, the purpose of the meeting, just as for Wills and Trusts, is for me to take Donor’s (Client’s) instructions.
Naturally this will not start until after I have explained and resolved the attendees’ technical and legal queries, and of course any concerns of the Donor and their close family members relating to the duties and responsibilities of the Attorneys to be duly appointed.
The instruction forms require the signature of the Donor solely, and not those of the other parties involved, see further below.
Attestation Meeting
This takes place once documents drafts have been issued, proof-read, checked, amended and agreed by the Donor. Typically the Attorneys may well assist in the interim draft checking and liaison with the other parties involved, as long as the Donor is not being unduly influenced against their wishes and choices thereof.
The final Power of Attorney document sets require the signatures of all of the parties below, with the exception of the Notifiable Person, although this is now optional, see above in the ‘parties involved’ section. The OPG will contact the Notified Person(s) as part of the Registration safeguard process, to check if they wish to register any objection to the choice of Attorneys.
Office of The Public Guardian (OPG) Registration
Once all the required forms are attested (witnessed and signed), they are submitted for processing and registration with the OPG. The pre-registration checking process ensures that the forms are rarely rejected by the OPG.
Post-registration, Reserve Attorneys will only be involved if and when they are required, and only due to non-ability of the appointed Attorneys to carry on their duties, eg due to death, disability, unavailability or unwillingness to act. However their appointment at Registration stage is to avoid the situation where, if only the main Attorneys had been appointed and had become incapacitated or died, the Power of Attorney arrangement would collapse and have to be re-applied for afresh and charged for. An odd OPG rule admittedly, but the Reserve appointments are an insurance against such a problem.
To arrange your Power of Attorney or Will, please call Martin on
01268 761022 or 07901 948745
