“Lasting Powers of Attorney, Enduring Powers of Attorney & Court of Protection”
The following information is also available as a leaflet that can be downloaded.
What is a Power of Attorney?
A Power of Attorney is a document whereby you can give authority to someone else to do a specific task or types of tasks on your behalf.
What are the different types of Power of Attorney?
There are four types of Power of Attorney:- A General Power of Attorney
- A Trustees Power of Attorney
- An Enduring Power of Attorney
- A Lasting Power of Attorney
You have to be mentally capable at the time to make any type of Power of Attorney. Each type of power is used in a different situation:
General Power of AttorneyThis can only be used while the person who gave it still has mental capacity. It can give authority to someone else to do a specific task or types of tasks.
Trustees Power of AttorneyThis is a very specialist type of power and is only used if you are a Trustee of a trust and need to delegate your authority.
Enduring Power of AttorneyThis used to be the type of power you would execute if you wanted to give authority to someone to deal with your financial affairs both before and after a loss of mental capacity. However it is no longer possible to execute this type of power as a result of the Mental Capacity Act 2005 which came into force in late 2007. Any Enduring Powers of Attorney made before that are still valid.
An Enduring Power of Attorney can be used as it stands so long as you retain mental capacity. If you lose mental capacity, it will be necessary to register the Enduring Power of Attorney with the Office of the Public Guardian before it can continue to be used. The Office of the Public Guardian makes a charge of £120 for registering an Enduring Power of Attorney.
Lasting Powers of AttorneyThis is the type of power you would now execute to give authority to someone to make decisions on your behalf even after you had lost mental capacity. It was brought in by the Mental Capacity Act 2005. The new Lasting Power of Attorney comes in two forms:
- Property and Affairs
- Personal Welfare
The Property and Affairs Lasting Power of Attorney allows you to give authority to someone to deal with your financial affairs. This can be used both before you lose mental capacity and afterwards.
The Personal Welfare Lasting Power of Attorney allows you to give authority to someone to make decisions in respect of your personal welfare and can only be used once you have lost mental capacity.
You can do one or other or both of these types of Lasting Power of Attorney.
A Lasting Power of Attorney can only be used once it has been registered with the Office of the Public Guardian regardless of whether you are still mentally capable or not. The Office of the Public Guardian makes a charge of £120 for registering a Lasting Power of Attorney.
If I have an Enduring Power of Attorney do I need to do a new power?
If you have an Enduring Power of Attorney already it continues to be valid. However it is limited to your property and affairs and does not give your Attorneys authority to make decisions relating to Personal Welfare on your behalf.
What happens if I lose mental capacity and I don’t have an Enduring Power of Attorney or a Lasting Power of Attorney?
If you don’t have a valid Power of Attorney, whether Enduring or Lasting, that gives authority to someone else and you lose mental capacity it will be necessary for an application to be made to the Court of Protection for a Deputy to be appointed to act on your behalf.
What is involved in an application to the Court of Protection to appoint a Deputy?
A Deputy only has authority to carry out limited actions dealing with your property and affairs. In very rare cases it is possible for someone to be appointed by the Court to make decisions relating to your Personal Welfare.
Every application that has to be made gives rise to a Court Fee of £400*.
In addition a Certificate of Capacity will need to be completed by your GP or consultant, for which they will be entitled to be paid. To date no recommendations have been made by the British Medical Association for the costs for completing such Certificates. However they will probably require the doctor to visit you and the costs are likely to be in the region of £100 - £200*.
The Court may also require your Deputy to provide security in the form of a Guaranteed Bond, on which annual premiums would be payable.
The amount of the premium would depend on the level of security required but will probably be in the region of £50 - £250* per year.
If a hearing is required as part of your application, maybe because an objection has been lodged or there is a contentious issue, there will be a hearing fee of £500* payable to the Court.
If you are unhappy with the outcome of an application and you wish to appeal, there is an appeal fee of £400* payable to the Court.
The Office of the Public Guardian, which oversees Deputyships once the Court has made the application, will charge a one-off charge of £100* for including the Deputy’s detail of a register and carrying out a risk assessment to determine the level of supervision that particular Deputy requires. They will then make annual supervision charges based on that level of supervision, which fall into three categories:
Maximum – Type I £800* Lower – Type II £175* Intermediate – Type IIA £350* Minimal – Type III Nil*
The Court also charges £25 for each Office Copy of the Order you request.
On top of the Court Fees, the Doctors fees and the fees of the Office of the Public Guardian you will have the fees of the solicitor you instruct to make the application on your behalf and, if you wish, carry out some or all the day to day management of the Deputyship afterwards. These fees will probably be calculated on a time cost basis to take into consideration the specific complexities of your case. In most cases these fees would be unlikely to be less than £1,000 + VAT for the initial application.
* figures correct as at April 09