Powers Of Attorney, Living Wills And Court Of Protection
Simple Power of Attorney
A power of attorney is a document by which you appoint someone else (your attorney) to do things on your behalf which you would normally do yourself.
This simple form of power of attorney has been used for centuries and is still available today. We can advise you about this and prepare one for you in appropriate circumstances.
The problem with the simple power of attorney is that your attorney can do on your behalf only those things you can do for yourself. So, if you lose mental capacity and are unable to manage your affairs, the power of attorney stops working and your attorney can no longer act for you.
Lasting Power of Attorney
The Lasting Power of Attorney (LPA) solves this problem. This is a special form of power of attorney which, subject to a number of built in safeguards, continues to work even if you have lost the capacity to make decisions for yourself.
These safeguards are:
- the document contains an explanation of the relevant background law, and the person making the LPA and the attorneys (and replacement attorneys, if any) must each sign a statement that they have read and understood this
- when you make the LPA, an appropriately-qualified person must certify that you understand the purpose of the LPA and the scope of the authority conferred under it, that no fraud or undue pressure is being used to induce you to create it and that there is nothing else which would prevent you creating it (usually, we will provide someone to sign this certificate)
- before it can be used at all, the LPA must be registered with the Office of the Public Guardian: this takes about two months, so it is usual to register it at once so that, if the LPA has to be used in future, it can be used without further delay
- when the LPA is sent to the Office of the Public Guardian for registration, some independent person of your choosing has to be given notice that this has happened.
There are two separate types of LPA – the Property & Affairs LPA (LPA PFA) and the Health & Welfare LPA (LPA HW).
The LPA PFA allows you to appoint one or more attorneys to make decisions about your property and financial affairs when you cannot make decisions for yourself. You can also delegate to your attorneys decisions about your property and financial affairs which you could make for yourself, but would prefer them to deal with.
The LPA HW breaks new ground by allowing you to appoint one or more attorneys to make decisions about your health and welfare when you cannot make them for yourself. Depending on how you fill in the form, your attorney may be able to make decisions about your medical treatment, including consenting to or refusing life sustaining treatment. This can overlap with and interact with an Advance Medical Decision (“Living Will”) – see below.
There are a number of choices to make about who acts as your attorney, (if more than one) how they act together, whether to appoint a replacement attorney, the scope of the powers you give your attorney, and whether to give written guidance to your attorneys. For an LPA HW, these decisions can become more difficult, especially when they relate to life-sustaining treatment and the interaction between the LPA HW and any Living Will you have made.
The government’s intention is that people use the forms and guidance published on the Office of the Public Guardian website to create and register LPAs themselves, without needing the help of a lawyer. In practice, many people find the forms and guidance too complex and turn to us for help.
If you “do it yourself”, one of our very experienced partners can act as certificate provider. Alternatively we can carry out the whole process of creating and registering the LPA for you.
Advanced Medical Decision (“Living Will”)
While you are capable of making and communicating a decision about your medical treatment, your doctors must respect your decisions (or go to a Court to have you overruled).
The principle of the Living Will is that, while you are capable of making and communicating a decision about your medical treatment, you write down what your decisions would be in certain critical situations. If one of those situations arises and you are not then capable of making and communicating a decision, your doctors will be bound by the terms of your Living Will.
This is a complex and sensitive area and the interaction between a Living Will and an LPA HW presents particular difficulty. We can help you with you this.
Enduring Power of Attorney
The Enduring Power of Attorney (EPA) came before the LPA and was replaced by the LPA. No new EPAs can be created, but existing EPAs remain valid.
Unlike the LPA, the EPA did not have to be registered when it was created, but it does have to be registered if the person who created it becomes mentally incapable of managing their own affairs.
We can advise on the validity and the use of EPAs and we can register an EPA for you.
Court of Protection
If someone (the patient) becomes incapable of making decisions for themselves and has not made a valid EPA or LPA, then the only way in which the patient’s affairs can be handled is by someone applying to the Court of Protection to be appointed as a Court Deputy for the purpose of managing the patient’s affairs.
The application process is quite complex and it can challenging to act as a Deputy.
We can help you make an application, or we can make it for you. We can advise you on acting as Deputy, or put forward one of our experienced partners to act as Court Deputy.
The partner in charge of this department is Michael Cutler, who has been a Solicitor for 30 years and has specialised in this field for some 20 years. He was admitted in 1995 to membership of the prestigious Society and Estate Practitioners, the multi-national and cross-professional grouping of the most experienced and skilled practitioners in this field.