Duty Of Care
It is a matter of considerable responsibility to handle someone’s affairs such as property, financial matters, and healthcare. The attorney owes a duty of care towards the donor to accurately account for all the dealings on his behalf, avoid any conflicts of interest and not benefit himself from the donor’s estate. The money and property belonging to the donor must be kept separate from the attorney’s own belongings.
Any person can set up his/her own power of attorney or seek professional help to handle the application. In order to give the attorney, powers to act on one’s behalf, the Lasting power of attorney has to be setup and registered with the Office of Public Guardian either by the Grantor, or the attorney by submitting following forms:
• LP1F – Lasting power of attorney for financial decisions
• LP1H – Lasting power of attorney for health and care decisions
If however the donor has lost his mental capacity, in such a case a power of attorney cannot be set up for someone, instead, the family members need to apply to the Court of Protection to be appointed as their deputies to handle related affairs.
Setting Up A Power Of Attorney
In the power of attorney forms, details of attorneys chosen and their powers to which they would act either jointly or severally must be laid down. Being able to act severally implies that each attorney can use their power independently. Conditions and restrictions can be imposed upon your attorneys’, but these may be rejected if found unworkable or unrealistic.
Attorneys can also apply for a statutory Will if the donor needs to make a Will but they cannot do it themselves. A donor’s Will once done cannot be changed. Unless the lasting power of attorney states otherwise, attorneys can spend money on:
• gifts to a donor’s friend, family member or acquaintance on occasions when they would normally give gifts (such as birthdays or anniversaries)
• donations to a charity that the donor would not object to, for example a charity he has donated to before
Attorneys must apply to the Court of Protection for any other type of gift or donation, even if the donor has given them before. These include:
• paying someone’s school or university fees
• letting someone live in the donor’s property without paying market rent (anything they pay below market rent counts as a gift)
• interest-free loans
Attorneys must also check that the donor can afford the gift or donation, even if they have spent money on these types of things before. For example, attorneys cannot donate their money if that would mean they couldn’t afford their care costs. Buying and selling property is possible however attorneys need to get legal advice if the sale is below the market value, want to buy the property yourself or giving the property to someone else.
If the donor shares a property with single attorney on loss of mental capacity, the attorney will need to choose a “Trustee” before the property could be sold. Attorneys can be ordered to repay the donor’s money if they have misused it or made decisions that benefit the attorney.
Signing & Attestation
The forms must be signed by the donor, the certificate provider, doctor who attested the mental capacity, each of the attorneys and the witnesses before submission.
After the power of attorney forms are signed, they are required to be submitted to the Office of the Public Guardian along with the fee. A Government’s online service can be used to create a LPA or by filling in a paper form sent by post to the Office of the Public Guardian. It can take 8 to 10 weeks to register the power of attorney.
Though not required to name anybody, if there are people who need to know that the donor is registering them as a power of attorney they should need to be identified and indicated in the LPA. A form LP3 should be send to them for notification and three weeks-time to show their concerns, if any with the Office of the Public Guardian.
Once the Office of the Public Guardian is satisfied with the particulars, they will send a stamped copy of the Power of attorney, showing that the Office of the Public Guardian has accepted the application and the lasting power of attorney has since been registered. An LPA is invalid and can’t be used until signed by the Office of the Public Guardian. It can also be chosen to whom the registered power of attorney is to be returned.