WHAT DO YOU NEED TO CONSIDER IF YOU ARE PLANNING TO COMPLETE A LASTING POWER OF ATTORNEY?
Choice of Attorney
Consider the following when choosing your attorney:
- They must be over 18
- They must not be an undischarged or interim bankrupt person, if you are making a property and affairs power
- They must be absolutely trustworthy and possess appropriate skills to make decisions on your behalf
- They should be people with whom you have a settled and easy relationship and if more than one, who get on with each other well, or who are likely to do so.
- You can appoint one attorney, but it is advisable to appoint more than one to lessen the chance of abuse of the power and ensure continuity in case the attorney cannot act.
- They can be a family member (it is common to appoint spouses, partners and children) friends or your professional adviser, such as your solicitor.
- They must agree to be your attorney and should understand the role they will be fulfilling. If they know the people who will be notified on registration they should have a good relationship with them.
- They must always act according to the principles laid down in the Mental Capacity Act 2005 and in your best interests. They must follow the guidance contained in the Code of Practice. All this is set out in Hansells information sheet on the role of attorneys.
- They will need to sign the Lasting Power of Attorney document accepting their role and their responsibilities.
- You will need to supply the full name, address, date of birth, telephone number (land line or mobile) and email address of your attorney(s).
How do you want them to operate in their role as attorney?
- If you have more than one attorney, consider how you want them to act. Jointly, ie, always together, or jointly and severally, ie, together and independently so that they can sometimes sign together and sometimes separately. The joint and several appointment works well when the attorneys do not live near to each other, or if one were to retire or die, as the other attorney can still act.
- You can direct that some tasks, for example. selling your house, must be dealt with together, and some tasks together or independently.
- If they are appointed together, they MUST be able to sign together which can be difficult in practice and if one dies, loses mental capacity, or becomes bankrupt (if the power is a financial power), the document can no longer be used.
- If you appoint your spouse or civil partner, be aware that dissolution of the marriage or civil partnership terminates the appointment of your spouse/civil partner, unless you have indicated otherwise.
Who will be the certificate provider?
You must choose a person to act as your certificate provider on the lasting power form. Without this the power cannot be registered or used.
This is a VITAL role, as the person concerned is confirming facts about the form and about you, namely:
- That they have read the prescribed information on the Lasting Power of Attorney and the part of the form which you have completed, and the part which they will complete.
- That you understand the purpose of the Lasting Power of Attorney and the scope of the authority it conveys. (They can only do this if they themselves understand what it is, so that they can ask you appropriate questions).
- That no fraud or undue pressure is being used to induce you to create the Lasting Power of Attorney. (They need to ask various questions to establish this)
- That there is nothing else that would prevent your Lasting Power of Attorney from being created (perhaps a defect in the way in which it has been completed).
Who can act as certificate provider?
- They must be someone of your choice who is over 18 years of age.
- Someone whom you have known for at least two years. Or
- Someone who, on account of their professional skills and expertise, considers themselves competent to make the judgements necessary to give the certificate, such as a solicitor or doctor.
They cannot be:
- A member of your family
- A family member of any of your attorneys
- Your business partner or paid employee
- Any attorney appointed by you under this document or another Lasting Power of Attorney or Enduring Power of Attorney
- The owner, manager or employee of a care home in which you are living, or their family member or partner
- A director or employee of a trust corporation appointed as your attorney
If we are not appointed as attorneys, we can act as Certificate Provider but, in order to fulfil the requirements of the document itself, we may need to see you alone at some point, even though you are with your spouse/civil partner/partner.
If we agree to act as attorney, we cannot act in the role of Certificate Provider, but will supply you with a list of appropriately qualified local solicitors any one of whom could fulfil this role.
Do you want to appoint replacement attorneys, and if so, when?
- It is especially useful to have a replacement attorney if your original attorneys have been appointed jointly, but it is also sensible as a way of “Hoping for the best and preparing for the worst!”
- Your choice of replacement attorney should be considered in the same way as your original attorney, so read the section above on the choice of attorney.
- You need to decide which attorney they will be replacing (in the absence of a choice from you, the replacement attorney will replace the first attorney who needs replacing).
Do you wish to place any restrictions and/or conditions on the attorneys you are appointing?
- You may wish to consider restricting the occasions when the attorneys should act for you.
- You do not have to restrict the attorneys, as such restriction will be legally binding and could cause difficulties.
- If you do, you must be careful that the document can still work. You should have advice on this from one of our lawyers.
Do you want to give your attorneys guidance?
- You may, for example, feel it would be helpful to give your attorneys some idea of the way in which you would like your finances dealt with if you no longer have capacity. In relation to a health and welfare Lasting Power of Attorney you may want, for example, to indicate where you would want to live and what treatments you may prefer not to have if you lose mental capacity.
- Please consider carefully the types of decisions you would like your attorney to make on your behalf, so we can discuss this in our meeting and draft the power to meet your wishes.
Do you want your attorneys to be paid?
- Generally, family and friends would not expect to be paid, although you may wish for it to be made clear that their out-of-pocket expenses should be covered. If you have professional attorneys, they must be paid for their work and this should be covered.
Notifying people of the registration of the power
You can choose up to five people to be notified when the Lasting Power of Attorney is registered with the Office of the Public Guardian. Once the power is registered, it can be used by your attorney. This is an important safeguard as they can raise concerns on your behalf. It is important that you think carefully as to the people you choose? Ideally they should be a person:
- With whom you are likely to have contact throughout your life.
- Who is interested in your best interests and well being.
- You should tell them that you are naming them, and make sure that they will take their role seriously, as it is for your protection.
- You need to supply their full personal details as above.
- If you decide that no one is to be notified, you will need to have two certificate providers.
- Please share the enclosed information with those to be notified so that they can access more information.
These notes are for general guidance only.
Our experienced team also includes a number of solicitors who are accredited by STEP, whose members are required to acquire additional technical qualifications and are subject to a Code of Professional Conduct, which requires them at all times to act with integrity and in a manner that inspires the confidence, respect and trust of their clients and of the wider community. STEP members are also required to keep up to date with the latest legal, technical and regulatory developments.
SFE members are all specialists in older client law, but what sets SFE members apart from other lawyers are their specialist client care skills that enable them to advise and support older and vulnerable clients. – click here to view our Code of Practice and Client Care Procedures. Samantha Loombe is an Associate Member of SFE.
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