News & Bulletins
Enduring Powers of Attorney
URGENT REMINDER Important information for all clients.
After the 1st October 2007 it will no longer be possible to take out Enduring
Powers of Attorney. The Mental Capacity Act has introduced new Lasting
Powers of Attorney and these will replace the old Enduring Powers.
Enduring Powers of Attorney are relatively simple documents and require only the signature of the donor and the attorney (or attorneys). They can, if desired, take effect immediately or they can be restricted to operate only once the donor has lost mental capacity to manage his or her affairs. They can continue to be used even after the donor has lost capacity, provided they are registered with the Court of Protection. Registration is also a relatively straightforward process, requiring notice to be given to the donor’s immediate relations.
Enduring Powers of Attorney have long been regarded as extremely useful. They enable the attorney to handle the financial affairs of those who, for one reason or another, have lost capacity without the need to appoint a receiver or to involve the Court of Protection. Receivership can be a cumbersome and time consuming process and can mean that it is difficult to sell property or withdraw funds for the patient.
The new lasting Powers of Attorney are much wider in scope than the Enduring Powers of Attorney. They fall into two categories: finance and welfare. The finance Lasting Power of Attorney will broadly govern the same matters as the existing Power of Attorney but the welfare Lasting Power of Attorney will give the attorney power to make decisions in relation to medical treatment and healthcare for the donor. The Lasting Power of Attorney will require the involvement of two firms of solicitors (one to advise the client and one to certify capacity). It will also need to be registered with the Court of Protection immediately following execution. The new procedure will therefore involve higher initial costs and will require more legal time and advice.
The aim of the new Lasting Power of Attorney is to seek to prevent abuse. There will be considerably more initial scrutiny and the registration procedure will mean that objections can be dealt with at the initial stage, rather than at some indeterminate period when the donor has lost capacity. The procedure is therefore more open and transparent.
However clients who do not have Enduring Powers of Attorney and who are considering taking this step may well wish to do so before the deadline. It will then be possible to convert the Enduring Power of Attorney into a Lasting Power of Attorney at some point in the future but the opportunity will be lost after 1 October of this year.
It is still possible to execute Enduring Powers of Attorney up to the end of September and we strongly recommend clients to consider taking this step.
Date:
July 2007
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