Powers of Attorney &
vulnerable client issues
Our approach is centred around our clients and their particular needs.
Vulnerable clients and how to protect them is fast becoming one of the key areas we assist clients with. Mental capacity and how our society deals with people who have lost capacity or their capacity is waivering is a growing challenge in an ageing population.
Our view is that the legal profession is here to adapt and respond to that need. Here at Harrisons we have a dedicated department who deal with these issues. We advise upon and create Powers of Attorney so that the preparatory steps are in place in the event of a loss of capacity. We also deal with matters in the Office of the Public Guardian and the Court of Protection when Court proceedings have become necessary
Our approach is centred around our clients and their needs taking into account their particular circumstances. We ensure that vulnerable clients are identified and protected. It is our view that we will where appropriate engage with more general non legal initiatives when planning for end of life care to provide a holistic approach.
Powers of attorney
An LPA that grants authority in relation to the your financial decisions.
This type of LPA can allow the person appointed ( known as the attorney) to do a variety of things relating to your finances for example – sell your property, make investments on your behalf, operate your bank account and pay your bills. The attorney can use the LPA while the donor still has capacity to make these decisions for themselves, unless you specify otherwise in the LPA. We ensure that LPA’s are custom drafted for you and your circumstances.
An LPA that grants authority in relation to the your health and welfare.
This type of LPA can only be used when you have lost capacity (or your attorney holds the reasonable belief that you have lost capacity.) Your attorney can make decisions about your medical treatment, but cannot make decisions about life-sustaining treatment unless you specifically permit this in the LPA. The attorney can also make decisions about where you live and how you spend your time unless you specify otherwise in the LPA. Time and care needs to be taken in drafting these documents to ensure that they reflect your wishes.
Being an Attorney
Who can be an attorney
- A health and welfare attorney must be over the age of 18 but otherwise there are no restrictions.
- A property and financial affairs attorney who is an individual must be at least 18 and not declared bankrupt.
- A trust corporation can be an attorney.
- A donor cannot insist upon someone being their attorney.
If you have appointed your spouse or civil partner the appointment will cease if the marriage or civil partnership has been dissolved unless you specifically provide otherwise in the LPA.
When can an attorney start acting
An attorney can only act when the LPA has been registered with the Office for the Public Guardian ( the OPG). A health and welfare attorney can only act when you have lost capacity. The rules relating to Enduring Powers of attorney are different and the EPA doesn’t have to be registered.
What is your attorneys role
We have produced a helpful guide to explain an attorneys role which you can access free of charge here
Will you need to pay your attorney
In general an attorney is entitled to any out of pocket expenses but not to be paid unless the power of attorney itself provides for them to be paid.
What if I have appointed two or more attorneys and they can’t agree
If more than one attorney has been appointed the power itself will set out how them may act – i.e can they make decisions on their own or do the decisions have to be joint decisions. If an attorney has made a decision on their own but other attorneys don’t agree with it then at first the attorneys should try to discuss the matter, if that doesn’t resolve the issue then an application can be made to the Office of the Public Guardian who will make a decision based on the evidence presented to it.
The Office of the Public Guardian ( the OPG)
The OPG is responsible for maintaining the register of LPAs and deals with representations about how attorneys appointed under LPAs are exercising their powers.
In particular they:
- deal with concerns expressed about someone who is acting under a power of attorney.
- register LPA’s and then maintains the public register of LPA’s and deputy’s
- supervise deputies and make sure the carry out their duties under the Mental Capacity Act 2005 appropriately
- look into reports of abuse against registered attorneys and deputies.
The Court of Protection
The Mental Capacity Act 2005 created a new Court of Protection (COP) which is supported by the OPG.
The Court of Protection’s has jurisdiction over the Property of an adult without capacity who is over the age of 16 which is located in England and Wales. It also has jurisdiction over the their assets if they are located anywhere in the world if they are habitually resident in England and Wales. They also have jurisdiction over the property of a child under the age of 16 located anywhere in the world if that child is habitually resident in England and Wales if it considers that the child would still lack capacity to make decisions at the age of 18.
The powers of the COP are wide ranging and are too numerous to list here are some of the common scenarios that they deal with
The Court can make a decision about a persons affairs but in some circumstances they will choose not to do so and will appoint a deputy to do so instead. The Court can appoint a deputy to deal with the property and financial affairs or the health and welfare of a person who lacks capacity. This is often necessary where a person has lost capacity and hasn’t got a power of attorney in place.
Resolving disputes about LPA’s or EPA’s
The Court can deal with objections to the registration of LPA’s or EPA’s and can intervene after registration if an LPA or EPA isn’t being operated appropriately.
Where a person lacks capacity they may not have made a Will prior to lacking capacity therefore the Court has power to execute a Will for a person over the age of 18 who lacks capacity. A scenario where this may be necessary is where they have substantial assets and for tax planning or succession reasons a Will is advisable.
Attorneys and Deputy have only limited powers to make gifts of the Donor’s assets. It may be the case that again for tax planning or succession reasons that gifts are being advised therefore the Court can authorise gifts.
Should you need any advice on the issues outlined above please contact our specialist team.