Lasting Powers of Attorney

Transcription

1 Lasting Powers of Attorney Information package Head Office 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F Thames Gateway Corinthian House Galleon Boulevard Crossways Business Park Dartford Kent DA2 6QE T F Thomson Snell & Passmore LLP All Rights Reserved

2 Contents 1. Fees 2. Lasting Powers of Attorney Summary 3. The role of an Attorney under a property & financial affairs Lasting Power of Attorney 4. The role of an Attorney under a health & welfare Lasting Power of Attorney 5. Acting as a certificate provider on a Lasting Power of Attorney 6. Registration of a Lasting Power of Attorney 7. Property & financial affairs Lasting Power of Attorney instruction form 8. Health & welfare Lasting Power of Attorney instruction form Thomson Snell & Passmore LLP's Lasting Powers of Attorney information package has been developed to make it easier for you to make a Lasting Power of Attorney, and to allow us to quote the fees shown in the accompanying Terms & Conditions. If you would like to take advantage of this convenient way of making a Lasting Power of Attorney, or simply require additional information, please call us on and ask to speak to an appropriate member of the Private Client team. " We were looking for the best and have never been disappointed. Client "

3 Lasting Powers of Attorney - Fees 1. Our fees for advice on, preparation and registration of Lasting Powers of Attorney are as follows: Preparation of Lasting Powers of Attorney: One type of Lasting Power of Attorney for you 450 One type of Lasting Power of Attorney for you and also for your spouse or partner 675 Both types of Lasting Power of Attorney for you 675 Both types of Lasting Power of Attorney for you and also for your spouse or partner Acting as Certificate Provider: 900 For one type of Lasting Power of Attorney for you 100 For both types of Lasting Power of Attorney for you 150 For one type of Lasting Power of Attorney for you and your spouse or partner For both types of Lasting Power of Attorney for you and your spouse or partner For arranging for your Doctor or other professional to act as your Certificate Provider Registration of Lasting Powers of Attorney (if registered at the time of preparation: Registration of one type of Lasting Power of Attorney for you 150 Registration of both types of Lasting Power of Attorney for you or registration of one type of Lasting Power of Attorney for both you and your spouse or partner Registration of both types of Lasting Power of Attorney for you and also for your spouse or partner Registration of Lasting Powers of Attorney (if NOT registered at the time of preparation: Registration of one type of Lasting Power of Attorney for you 300 Registration of both types of Lasting Power of Attorney for you or registration of one type of Lasting Power of Attorney for both you and your spouse or partner Registration of both types of Lasting Power of Attorney for you and also for your spouse or partner

4 2. Fees quoted are valid for 30 days from receipt of this schedule. 3. The fees for registration do not include any additional advice given and time spent in dealing with any objections raised on registration of the Lasting Powers of Attorney. This and any other advice not within the above will be charged on the basis of time spent at a specified hourly rate with your prior authorisation. An application fee of 110 is payable to the Office of the Public Guardian for each Lasting Power of Attorney to be registered. 4. Fees do not include VAT, which will be charged at the standard rate. 5. Our full Terms of Business will be supplied on request or when confirming your instructions to proceed. June 2016

5 Information August 2015 Lasting Power of Attorney Summary Head Office 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F Thames Gateway Corinthian House Galleon Boulevard Crossways Business Park Dartford Kent DA2 6QE T F The donor and the attorney A lasting power of attorney (LPA) is used by one person (the donor) to give authority to another person (the attorney) to make certain decisions on behalf of the donor. An LPA can be used when the donor is no longer able, or lacks mental capacity, to make decisions. There are two types of LPA: 1 A property and financial affairs LPA, which allows the attorney to deal with the donor's property and finances. This can include selling property, closing bank accounts, access to the donor's financial information and dealing with the donor's tax affairs. This type of LPA can be used once it has been registered, even if the donor still has capacity to make decisions themselves. 2 A health and welfare LPA allows the attorney to make welfare and health care decisions on the donor's behalf, but only when the donor lacks the mental capacity to do so themselves. These decisions can include where the donor should live, decisions regarding medical treatment and the donor's day-to-day care. Who can be an attorney Any person over eighteen may be appointed as an attorney under an LPA. (An attorney who is a bankrupt cannot be appointed as attorney in relation to the donor's property and affairs, but can be in relation to the personal welfare of the donor.) The role of an attorney is an important one and carries a great deal of responsibility. It is therefore important that attorneys are chosen carefully and understand their responsibilities in law as to how and when they make decisions. Limiting the types of decision an attorney can make Certain decisions are beyond the scope of what can be done by an attorney. For example, a health and welfare attorney cannot be used if the donor has capacity to make the decision in question; a property and financial affairs cannot be used to make gifts except to the limited extent permitted by the Mental Capacity Act. It is possible to set out further limits to the decisions an attorney can make by specifying this in the LPA itself. A property and financial affairs LPA can specify that an attorney cannot act until the donor lacks capacity to make decisions (otherwise an attorney will be able to act as soon as the LPA is registered, although if the donor still has capacity to make decisions, the attorney must consult with the donor before making any decisions). A health and welfare LPA may prevent the attorney from giving or refusing consent to life sustaining treatment. Attorneys must act in the best interests of the donor at all times The attorney must always act in the best interests of the donor. This requires consideration of the donor's past and present wishes and feelings, beliefs and values. For example a donor may wish to specify that certain relatives are consulted over an important decision such as the sale of the family home. These may be recorded in the LPA itself. Attorneys are accountable to the Court and may be called upon to justify their decisions if there is evidence 1

6 August 2015 Lasting Power of Attorney Summary (continued) that they have failed to take account of the donor s wishes. There can be more than one attorney If there is more than one attorney the donor must decide whether the attorneys are to act jointly, meaning every decision must be a joint one, or jointly and severally, allowing an attorney to make a decision alone if the others are not available. The donor can specify replacement attorneys The donor can specify replacement attorneys in the LPA. For example, a donor may appoint his or her spouse as attorney and a son or daughter as a replacement attorney if the spouse should die or become unable to act. Procedure for making an LPA As the LPA gives the attorney control over the donor's property, there are a number of safeguards to protect the donor. Certain people may be notified before the LPA is registered. The donor may name up to five people to be notified when an application is made to register the LPA. This enables the named people to raise objections if they have any concerns regarding the LPA. Although this safeguard is optional, it is always advisable for a donor to inform close relatives and professional advisers of the LPA. The donor must choose an independent person to provide a certificate of capacity The certificate provider is chosen by the donor and must be either: 1 Someone the donor has known personally over the last 2 years. This must be more than just a passing acquaintance. 2 Someone who has relevant professional skills. This includes registered healthcare professionals including a GP, a registered social worker, an Independent Mental Capacity Advocate, a barrister, solicitor, advocate or any other person who certifies that they possess the relevant professional skills and expertise to provide a certificate. The following cannot be a certificate provider: an attorney of the LPA or any other power of attorney made by the donor a family member of the donor a family member of the attorney a director or employee of a trust corporation acting as an attorney a business partner or employee of the donor, or of the attorney an owner, director, manager or employee of any care home in which the donor is living when the instrument is executed or a family member of such a person. A certificate provider confirms the donor: understands what an LPA is and understands the contents of the LPA; 2

7 August 2015 Lasting Power of Attorney Summary (continued) understands what powers the donor is giving to the attorney in the LPA; is not being pressured, tricked or placed under duress by someone else to make the LPA; and that there is nothing else that would prevent the LPA in question being created. The certificate provider certifies this when signing the LPA. The certificate provider can be called to justify an assessment at a later date if there are concerns that any of these requirements have not been satisfied. The signatures of the donor and attorney must be witnessed. The certificate provider can also act as a witness to the LPA. The donor and attorney cannot act as witnesses for each other but the attorneys can witness each other's signatures. The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used The LPA can be registered any time after it is signed and cannot be used until it has been registered. The benefit of registering the LPA shortly after it is made is that it will be ready to be used whenever it is needed. The registration process can take up to two months and the attorneys cannot use the power while awaiting registration to be completed. If an application to register the LPA is made a long time before it is needed the donor should review it from time to time to make sure it is still relevant to his or her circumstances. However, the donor cannot make changes to an LPA once registered. To make changes (e.g. change the scope of its powers or appoint new attorneys) a new LPA would need to be completed. The OPG charges a fee of 110 for each application to register an LPA. However, the donor may be eligible for a fee exemption if in receipt of the following means-tested benefits and has capital of less than 16,000 (and has not been awarded damages of more than 16,000): 1 Income Support; 2 Income-based Job-Seeker's Allowance; 3 Income-based Employment and Support Allowance; 4 State Pension Guarantee Credit; 5 A combination of Working Tax Credit and either Child Tax Credit, Disability Element or Severe Disability Element; or 6 Housing Benefit or Council Tax Benefit. The OPG may investigate attorneys and involve the Court of Protection In the majority of cases, attorneys act lawfully and with no outside supervision. Occasionally however, attorneys act improperly or concerns are raised by relatives, social workers or other professionals. They can report their concerns to the OPG who have authority to investigate attorneys and obtain accounts and records from them. If they have acted improperly, an application may be made to the Court of Protection for their removal. The Court of Protection has ultimate jurisdiction to make decisions which 3

8 August 2015 Lasting Power of Attorney Summary (continued) persons lack capacity to make or to authorise certain decisions in their best interests. Thus where there is conflict or uncertainty over whether a certain decision should be made or a decision should be made which is beyond the scope of an attorney s authority then an application may be made to the Court of Protection. Conclusion An LPA enables a person to plan ahead and choose the right persons to make decisions that may need to be taken at a time when he or she cannot make decisions. This may be a time when decisions cannot be made in person and need to be entrusted to someone else, and potentially to be taken at a time of stress and vulnerability. In the absence of a properly appointed attorney, bank accounts (including joint accounts where the other account holder has lost mental capacity) and other savings will be frozen. Access to funds will only be possible on the appointment of a deputy by the Court of Protection. That involves a lengthy and often costly procedure, which is avoided by the appointment of attorneys. Having an LPA registered and ready for use can allow decisions to be made quickly if the donor loses capacity and can help avoid disputes as to who should make decisions and what the donor's preferences would have been had the donor not lost capacity. At Thomson Snell & Passmore We have a great deal of experience in this area of practice. We have looked after the affairs of our clients for generations and frequently act as attorneys and deputies for clients who lack capacity. We have one of a handful of dedicated teams of lawyers in the country specialising in Court of Protection work, acting for deputies, attorneys and relatives in all aspects of Court of Protection proceedings, including contested applications for the replacement of attorneys or deputies, the making of settlements, gifts and wills. We are confident that our own experience in making decisions as attorneys and deputies as well as advising clients in all aspects of LPA and Court of Protection matters can be of service to any person making an LPA or requiring advice as an attorney. Disclaimer This information sheet is written as a general guide. As any course of action must depend on your individual circumstances, you are strongly recommended to obtain specific professional advice before you proceed. We do not accept any responsibility for action which may be taken as a result of having read this information sheet. NOTE: The law is stated as at 1 August If you require further information, please discuss with your usual contact in the firm or Martin Terrell or Stuart Goodbody on or by at: martin.terrell@ts-p.co.uk stuart.goodbody@ts-p.co.uk Thomson Snell & Passmore LLP All Rights Reserved 4

9 Information August 2015 The role of an attorney under a property and financial affairs Lasting Power of Attorney Head Office 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F Thames Gateway Corinthian House Galleon Boulevard Crossways Business Park Dartford Kent DA2 6QE T F Introduction The role of an attorney is an important one, which carries with it a great deal of responsibility. The Mental Capacity Act 2005 (the Act') which came into force on 1 October 2007 allows a person (the donor ) to make a power of attorney called a 'lasting power of attorney' or 'LPA' which remains effective even if the donor lacks capacity. There are two types of LPA; a property and financial affairs LPA and a health and welfare LPA. This information sheet is designed to give some general guidance and information about the role of an attorney appointed under a property and financial affairs LPA. Registration of the LPA An attorney will only be able to act when the LPA has been registered with the Public Guardian. Thus even if the LPA has been signed by the donor and the attorneys, it has no legal effect and cannot be used until it has been registered. Registration is a simple procedure which allows an LPA to come into operation. The attorneys or the donor (who has capacity) can apply to register the LPA. The person applying to register must also give notice to any persons named in the LPA as persons to be notified. The application is then lodged, with a fee, with the Office of the Public Guardian (OPG). The OPG notifies the attorneys if the application is made by the donor. If there are no valid objections, registration takes place six weeks after the OPG sends out notice. Often an LPA is made by a donor who has capacity as a form of insurance, so that it can be used if in future the donor lacks capacity. If however the LPA has not been registered and you consider that the donor may lack capacity then you should arrange to register the LPA as soon as possible. When can an attorney act under a property and financial affairs LPA? An LPA can be used at any time once it has been registered (subject to any conditions in the LPA itself), whether or not the donor has capacity to make the decisions which the attorney is making. If the donor has capacity, then the attorney cannot ignore the donor s instructions and the donor can cancel the LPA at any time, (although the Public Guardian must be notified that the LPA has been revoked). As an attorney you may find yourself dealing with one or more of the following situations: no action is required while the LPA remains dormant or in readiness; you are acting with the knowledge and consent of the donor; the donor lacks capacity and you are making decisions on behalf of the donor; the donor has capacity to make certain decisions for himself, while lacking capacity to make other decisions. How should an attorney act under a property and affairs LPA? An LPA is part of a wider statutory framework set out in the Act. As well as providing a formal structure for decisions to be made, the Act sets out clearly when decisions can be made for persons who lack capacity and how those decisions 1

10 August 2015 The role of an attorney under a property and financial affairs Lasting Power of Attorney Continued should be made. An attorney must therefore follow the principles set out in section 1 of the Act: it should be assumed that everyone can make their own decisions unless it is proved otherwise. a person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision. a person should not be treated as lacking capacity just because he makes an unwise decision. actions or decisions carried out on behalf of someone who lacks capacity must be in that person's best interests. actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible. Acting in the best interests of the donor The requirement to act in a person's best interests is a fundamental requirement of the Act. An attorney (or any other person or body making a decision on behalf of another who lacks capacity to make that decision) is required by the Act to act in that person s best interests. In deciding whether or not you can make a decision, or in making a decision on behalf of the donor, you must: Not make assumptions based on the donor s age, appearance or condition; Consider whether the donor will regain capacity; Encourage the donor to participate in any decision made or act carried out on behalf of the donor; Consider the donor s past and present wishes and feelings, beliefs and values (and in particular any written statement); and Where practical and appropriate consult with anyone caring for the donor, close relatives and anyone else with an interest in the welfare of the donor as well as any attorney appointed by the donor or any deputy appointed by the Court of Protection. What can an attorney do under a property and financial affairs LPA? As an attorney you can make most legal decisions that the donor could make in person. Some decisions, such as making gifts, are restricted by the Act, while others such as the making of a will or settlement are prohibited altogether. The LPA in this case relates only to a person s property and financial affairs and not to the making of any welfare decisions. However, an LPA should always be exercised to support the welfare of the donor. Thus you could not consent to a particular medical treatment but you can ensure that funds are made available to provide the best level of care. So long as the donor has capacity, you are assumed to act with the knowledge and approval of the donor unless the LPA has been cancelled or you have notice of contradictory instructions. For instance you could not sell investments or buy a property if the donor expressly refused consent. 2

11 August 2015 The role of an attorney under a property and financial affairs Lasting Power of Attorney Continued Can an attorney make gifts? An attorney acting under a property and affairs LPA has very limited power to make gifts on behalf of the donor. Unless there is a restriction in the LPA, gifts can only be made to: people who are related to, or connected with the donor (including attorneys) on specific occasions such as births or birthdays, weddings or wedding anniversaries, civil partnership ceremonies or anniversaries, or any other occasions when family, friends or associates usually give presents; and charities where there is a history of regular payments, or even from time to time; and the gifts must be reasonable having regard to all the circumstances and in relation to the donor s assets. Where the donor lacks capacity the Court of Protection can on a formal application by the attorney or other person authorise larger gifts on behalf of the donor. If there is any doubt as to whether a particular gift can or should be made then an application should be made to the Court of Protection. Legal obligations As an attorney you have certain legal obligations when acting on behalf of a donor. If you are willing to act as an attorney then you should read the LPA itself and then complete Section 11. In doing this, you confirm as follows: you are aged over 18 you have read the LPA including Section 8 Your legal rights and responsibilities you have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice you must make decisions and act in the best interests of the donor you must take into account any instructions or preferences set out in the LPA you can only make decisions or act at a time when the LPA has been registered and at the time indicated in Section 5 (if this restriction has been specified). As an attorney you also have obligations under the general law and must, in general: not exceed the scope of your authority under the LPA or in law not make gifts except to the limited extent permitted keep accounts and financial records and produce them to the OPG and/or to the Court of Protection on request apply relevant standards of care and skill (duty of care) when making decisions carry out any express instructions (which the donor has capacity to provide) not take advantage of your position and not benefit from acting as an attorney not delegate decisions, unless authorised to do so act in good faith respect confidentiality not give up the role without telling the donor (if capable) and the OPG; and keep the donor s money and property separate from your own money. 3

12 August 2015 The role of an attorney under a property and financial affairs Lasting Power of Attorney Continued The Code of Practice An attorney or any person making decisions on behalf of another person who lacks capacity must have regard to the Code of Practice issued under the Act. This is a useful, if lengthy, document which aims to provide help and guidance with illustrations of particular dilemmas faced by those having to make decisions. Copies are available from the Stationery Office or in PDF form from the Government website at: /mental-capacity-act-code-of-practice Avoiding problems Although the obligations of an attorney may appear daunting, they can be undertaken readily if they are acted on with common sense and integrity. Problems often arise where there is a lack of understanding over what an attorney may or may not do or where one attorney fails to co-operate with the other attorney or to consult with other relatives. It is important to keep in mind at all times that your responsibilities are to the donor and if you have any queries or concerns over your role, you should seek further advice. At Thomson Snell & Passmore We have a great deal of experience in this area of practice. We have looked after the affairs of our clients for generations and frequently act as attorneys and deputies for our clients. We have one of a handful of dedicated teams of lawyers in the country specialising in Court of Protection work, acting for deputies, attorneys and relatives in all aspects of Court of Protection proceedings, including contested applications for the replacement of attorneys or deputies, the making of settlements, gifts and wills. We are confident that our own experience in making decisions as attorneys and deputies as well as advising clients in all aspects of LPA and Court of Protection matters can be of service to attorneys in carrying out their responsibilities, avoiding problems wherever possible and then dealing with problems where they are unavoidable. Disclaimer This information sheet is written as a general guide. As any course of action must depend on your individual circumstances, you are strongly recommended to obtain specific professional advice before you proceed. We do not accept any responsibility for action which may be taken as a result of having read this information sheet. NOTE: The law is stated as at 1 August If you require further information, please discuss with your usual contact in the firm or Martin Terrell or Stuart Goodbody on or by at: martin.terrell@ts-p.co.uk stuart.goodbody@ts-p.co.uk Thomson Snell & Passmore LLP All Rights Reserved 4

13 Information June 2011 The role of an attorney under a Health and Welfare Lasting Power of Attorney Head Office 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F Thames Gateway Corinthian House Galleon Boulevard Crossways Business Park Dartford Kent DA2 6QE T F Introduction The Mental Capacity Act 2005 came in to force on 1 October The Act allows you to make a power of attorney called a 'lasting power of attorney' or 'LPA'. There are two types of LPA; a property and financial affairs LPA and a health and welfare LPA. This information sheet is designed to give some general guidance and information about the role of an attorney, appointed under a health and welfare LPA. Please see our separate information sheets on the role of an attorney under a property and financial affairs LPA, and on LPAs generally. When can an attorney act under a health and welfare LPA An attorney can only act under a health and welfare Lasting Power of Attorney if: 1 the LPA has been registered with the Public Guardian; 2 the attorney reasonably believes that you have lost the mental capacity to make the particular decision at the time it needs to be made; 3 there is no later and inconsistent Advance Decision; and 4 in relation to life sustaining treatment, the LPA specifically allows the attorney to make this decision. Acting in your best interests The requirement to act in a person's best interests is a fundamental requirement of the Mental Capacity Act. An attorney (or any other person or body making a decision on behalf of others) is required by the Act to act in your best interests, should you lack capacity. Your attorney, in deciding whether or not you can make a decision, or in making a decision on your behalf, must by law: 1 Not make assumptions based on your age, appearance or condition; 2 Consider whether you will regain capacity; 3 Encourage you to participate in any decision made or act carried out on your behalf; 4 Consider your past and present wishes and feelings, beliefs and values; and 5 Where practical and appropriate consult with: a anyone caring for you b close relatives and anyone else with an interest in your welfare c any attorney appointed by you d any deputy appointed by the Court of Protection Where a decision being made under a health and welfare LPA relates to lifesustaining treatment, your attorney must not be motivated by a desire to bring about your death. Legal obligations An attorney also has certain legal obligations when acting on your behalf and must, in general: 1 not exceed the scope of his authority under the LPA or in law; 1

14 June 2011 The role of an attorney under a Health and Welfare Lasting Power of Attorney (continued) 2 apply relevant standards of care and skill (duty of care) when making decisions; 3 carry out any express instructions; 4 not take advantage of his or her position and not benefit from acting as an attorney; 5 not delegate decisions, unless authorised to do so; 6 act in good faith; 7 respect confidentiality; 8 comply with the directions of the Court of Protection and Public Guardian; 9 not give up the role without telling you and the Public Guardian; 10 keep accounts; and 11 keep your money and property separate from his or her own money. An attorney or any person making decisions on my behalf where you lack capacity must also have regard to the Code of Practice. This is a useful if lengthy document which aims to provide help and guidance with illustrations of particular dilemmas faced by those having to make decisions. Copies are available from the Stationery Office or in PDF form from the Office of Public Guardian website at: What can the attorney do under a health and welfare LPA? 1 Unless the LPA contains a restriction, the attorney will be able to make decisions about your personal welfare and health care. Decisions could include: 2 where you should live and who you should live with; 3 your day-to-day care, including diet and dress; 4 who you may have contact with; 5 consenting to or refusing medical examination and treatment; 6 making arrangements for medical, dental or optical treatment; 7 assessments for and provision of community care services; 8 whether you should take part in social activities, leisure activities, education or training; 9 your personal correspondence and papers; 10 rights of access to personal information about you, including your medical records, or; 11 complaints about your care or treatment; 12 There are also three further important limitations on what an attorney can do under a welfare power: a The attorney must act in your best interests; b There is no power to demand specific forms of treatment. The attorney can merely give or refuse authority or consent to someone else such as 2

15 June 2011 The role of an attorney under a Health and Welfare Lasting Power of Attorney (continued) doctor or carer to carry out or withhold a particular treatment or act; c If you are detained under the Mental Health Act 1983, no decision can be made regarding treatment for a mental condition. Statutory principles A Lasting Power of Attorney is part of a wider statutory framework laid out in the Mental Capacity Act. As well as providing a formal structure for decisions to be made, the Act sets out clearly when decisions can be made for persons who lack capacity and how those decisions should be made. An attorney must therefore follow the principles set out in section 1 of the Act: 1 Principle 1 It should be assumed that everyone can make their own decisions unless it is proved otherwise. 2 Principle 2 A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision. 5 Principle 5 Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible. Disclaimer This information sheet is written as a general guide. As any course of action must depend on your individual circumstances, you are strongly recommended to obtain specific professional advice before you proceed. We do not accept any responsibility for action which may be taken as a result of having read this information sheet. NOTE: The law is stated as at 16 October If you require further information, please discuss with your usual contact in the firm or Edward Fardell, Martin Terrell or Stuart Goodbody on or by at: eddie.fardell@ts-p.co.uk martin.terrell@ts-p.co.uk stuart.goodbody@ts-p.co.uk 3 Principle 3 A person should not be treated as lacking capacity just because they make an unwise decision. 4 Principle 4 Actions or decisions carried out on behalf of someone who lacks capacity must be in that person's best interests. Thomson Snell & Passmore LLP All Rights Reserved 3

16 Information August 2015 Acting as a certificate provider on a Lasting Power of Attorney Head Office 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F Thames Gateway Corinthian House Galleon Boulevard Crossways Business Park Dartford Kent DA2 6QE T F Introduction As an important safeguard against abuse, one of the requirements in making a Lasting Power of Attorney (LPA) is for the document to be countersigned by an independent person (the certificate provider) chosen by the donor (the person granting the power) to confirm that in his or her opinion: The donor understands the purpose of the LPA and the scope of the authority being given to the attorney(s); The donor is not under any undue pressure or duress to make the LPA or has not been tricked into making it; and There is nothing else that would prevent the LPA being created. Who can act as a certificate provider? There are two types: Category (a) This is a knowledge based certificate provider who knows the donor personally and has done so for a minimum period of two years. Category (b) This is a skills based certificate provider. This is a person the donor believes has the relevant professional skills and expertise to provide the certification. A skills based certificate provider would normally make a charge for their services, and could be one of the following: a registered healthcare professional such as a GP a registered Social Worker a Barrister, Solicitor or Advocate an Independent Mental Capacity Advocate any other person who considers they have the relevant professional skills and expertise to be a certificate provider. Certain categories of person cannot act as a certificate provider and when completing the certificate you will be confirming that you are not prevented from acting on this role. The following persons cannot act as a certificate provider: an attorney under the LPA or any other power of attorney made by the donor a family member of the donor a family member of the attorney a director or employee of a trust corporation acting as an attorney a business partner or employee of the donor, or of the attorney an owner, director, manager or employee of any care home in which the donor is living when the instrument is executed or a family member of such a person. The responsibilities of the certificate provider As a certificate provider you need to assess the donor's capacity to understand the importance of the document he or she has signed and the extent of the powers given by it. If, for any reason, the LPA is challenged at the time when it is being registered, you may be called on by the Public Guardian or the Court of Protection to justify your opinion. You therefore need to be satisfied as far as you are aware - that the donor has, when signing his or her part of the LPA, understood the nature and effect of the LPA. Your role is not to provide an exhaustive analysis of the LPA or to give 1

17 August 2015 Acting as a certificate provider on a Lasting Power of Attorney (continued) advice, but to provide a record that the essential characteristics of the LPA are understood and that the document is being made free of any undue pressure or fraud. It is advisable to ask the donor open questions about the LPA, why it is being made, the choice of attorneys and what the attorneys may or may not do. Questions that you may wish to ask are: What is your understanding of the LPA? What sort of LPA is this (property and affairs or health and welfare?) Who are your attorneys and why have you chosen them? When can your attorneys act and what are their powers? How should your attorneys act (where there are more than one) and do you understand the difference between acting jointly and jointly and severally? Are there any decisions you do not wish your attorneys to take? What preferences or instructions have you included? It would be wise for a certificate provider, especially if acting in a professional role, to keep a record of the questions asked and to keep a note of the responses given. Steps to be taken The donor must first execute his or her part of the LPA (Section 9) by signing and dating the form in the presence of an independent witness. (The certificate provider can be a witness). You must then read the Certificate Provider s Statement and satisfy yourself that you can comply with the requirements set out in the form both as to your status as a certificate provider and as to your understanding of the donor s capacity and freedom to act. You may then complete the box provided showing your name and address and then sign and date the certificate. The form does not require you to state the capacity in which you are making the certificate of capacity and it is therefore advisable that you provide the donor or the donor s solicitor with a letter or other record of your status. For example if you have known the donor in a personal capacity, you should record how long you have known the donor; if you are acting in a professional capacity, you should record your qualifications. Disclaimer This information sheet is written as a general guide. As any course of action must depend on your individual circumstances, you are strongly recommended to obtain specific professional advice before you proceed. If you have any concerns about the donor s capacity or freedom to act then you must seek specialist advice. We do not accept any responsibility for action which may be taken as a result of having read this information sheet. NOTE: The law is stated as at 1 August If you require further information, please discuss with your usual contact in the firm or Martin Terrell or Stuart Goodbody on or by at: martin.terrell@ts-p.co.uk stuart.goodbody@ts-p.co.uk Thomson Snell & Passmore LLP All Rights Reserved 2

18 Information July 2015 Registration of a Lasting Power of Attorney Head Office 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F Thames Gateway Corinthian House Galleon Boulevard Crossways Business Park Dartford Kent DA2 6QE T F Introduction Before either a Property and Financial Affairs Lasting Power of Attorney (LPA) or a Health and Welfare LPA can be used it must be registered with the Office of the Public Guardian (OPG). The registration process can take place any time after the LPA has been made. It can therefore be registered immediately once it has been completed. The advantage of this is that the LPA will be ready to be used by the attorneys when it is needed. The disadvantage is that if a subsequent LPA is made this too will need to be registered before it can be used. There is a registration fee on each occasion. It is important to note that changes cannot be made to any part of a registered LPA. Registration of LPAs The application to register an LPA may be made by either the donor or the attorneys. It is necessary to make separate applications to register Property and Financial Affairs LPAs and Health and Welfare LPAs. An OPG registration fee currently 110 is payable in respect of each LPA. Where an LPA is being registered by attorneys appointed jointly the attorney must also apply for registration together. If the attorneys are appointed jointly and severally, then any one of them may make the application. The OPG will give formal notification to the donor of the application as well as any other attorneys who have not applied to register. The attorneys need to notify the people to be told if any are listed in the LPA. Once all of the necessary documents have been lodged with the OPG a registration date is set. This will be four weeks from the date that the OPG gives notice to any persons who did not join in the application to register. Information for donors applying to register an LPA The donor does not have to give notice to the attorneys of the intention to register. Although it would be sensible to discuss the intention with them, the OPG formally notifies the attorneys of the application in any event. The donor also needs to notify the people to be told if any are listed within the LPA. Once the documents are lodged the OPG will set a registration date four weeks from the date that the OPG sends out notification to the attorneys. It is important to remember that an unregistered LPA cannot be used to make decisions on the donor s behalf. If, therefore, an urgent decision needs to be made on behalf of the donor but the LPA has not yet been registered, it may be necessary to apply to the Court of Protection for an Order on that decision. This will entail the payment of a fee. Disclaimer This information sheet is written as a general guide. As any course of action must depend on your individual circumstances, you are strongly recommended to obtain specific professional advice before you proceed. 1

19 July 2015 Registration of a Lasting Power of Attorney (continued) We do not accept any responsibility for action which may be taken as a result of having read this information sheet. NOTE: The law is stated as of 25 July If you require further information, please discuss with your usual contact in the firm or Edward Fardell, Martin Terrell or Stuart Goodbody on or by at: eddie.fardell@ts-p.co.uk martin.terrell@ts-p.co.uk stuart.goodbody@ts-p.co.uk Thomson Snell & Passmore LLP All Rights Reserved 2

20 Lasting Power of Attorney instruction form Property and Financial Affairs This form will provide us with the information required to draft a Property and Financial Affairs Lasting Power of Attorney for an individual, or two such Lasting Powers of Attorney for a couple. It will also reveal whether special arrangements are advisable to meet your needs; in such circumstances it may be necessary to contact you to ask further questions. In order to make a Lasting Power of Attorney, you must have the requisite mental capacity to do so. If there is some concern over whether you do, it may be necessary to contact your GP or another doctor for a medical opinion. If you wish to make Lasting Power of Attorney in respect of your health and welfare in mirror terms to those for your property and financial affairs, please tick here (in which case you do not need to repeat all the details in this form). If this form is completed by anyone other than the donor, we will need to contact the donor directly to confirm the instructions. 1. Personal details For you Your spouse/partner Full name (including title): Any other names you are known by in financial documents or accounts: Date of birth: Postal address: Telephone number: address: 3 Lonsdale Gardens Tunbridge Wells Kent TN1 1NX T F

21 2. Your attorneys It is important that you appoint individuals whom you trust. You can appoint one or more individuals to act as your attorneys and we do recommend that you appoint more than one attorney. With only one, the LPA will be ineffective if that person is unable or unwilling to act as your attorney, unless you have appointed replacement attorney(s) see 4 below. Professional persons such as solicitors can be appointed as attorneys. However, please bear in mind that if you wish to appoint someone from Thomson Snell & Passmore LLP, we shall be unable to act as Certificate Provider when you come to sign the LPA. This is explained in more detail in the separate information sheet on Acting as a Certificate Provider. For you For your spouse/partner First attorney: Full name (including title): Date of birth: Address: Telephone number: address: Second attorney: Full name: Date of birth: Address: Telephone number: address: For three or more attorneys, please continue on a separate sheet. Page 2

22 3. Jointly or jointly and severally If you choose to appoint more than one attorney, we will need to know whether you wish them to act jointly or jointly and severally. We normally recommend that multiple attorneys act jointly and severally, which is more flexible, and will ensure that the LPA remains valid if one attorney is unable to act for any reason. A brief explanation of each type of appointment is given below: Jointly - If you appoint your attorneys jointly, not only do they all have to sign every significant document, but the LPA will cease to be effective if one of the attorneys dies or becomes mentally incapable, unless you have appointed a replacement. Jointly and Severally - If you appoint your attorneys to act jointly and severally, the LPA will remain effective even if one of them is unable or unwilling to act. You can still appoint a replacement attorney in these circumstances if you wish. If more than one attorney is to be appointed, please indicate here your particular wishes: If you wish your attorneys to act jointly in respect of some matters, and jointly and severally in respect of others, you will need to give specific details here. For you Jointly Jointly and Severally For your spouse/partner Jointly Jointly and Severally 4. Replacement attorneys You may wish to appoint replacement attorneys to act in place of one or more of your original attorneys, should anything happen to them. If so, please provide the following details: For you For your spouse/partner First replacement: Full name (including title): Date of birth: Address: Telephone number: address: Page 3

23 Second replacement: Full name (including title): Date of birth: Address: Telephone number: address: For three or more replacement attorneys, please continue on a separate sheet. Please note that it will be assumed that all your replacements will fill any vacancy which arises, unless you specify otherwise (e.g. if you want the replacements to act only if all the original attorneys cannot do so). If your replacement attorneys fully replace your original attorney(s) at once, they will usually act jointly. As with attorneys, we normally recommend that multiple replacement attorneys act jointly and severally, which is more flexible, and will ensure that the LPA remains valid if one replacement attorney is unable to act for any reason. Unless you specify otherwise, we will assume that your replacement attorneys are to act jointly and severally. 5. When can your attorneys make decisions? You can restrict use of the LPA to only when you no longer have mental capacity. However, this can make your LPA less useful and your attorneys may be asked to prove that you do not have mental capacity each time they try to use the LPA. Unless you specify otherwise, we will state that the LPA may be used whilst you still have capacity. 6. Notifications - people to be told - optional When your LPA is to be registered with the Office of the Public Guardian, you may specify persons to receive notification in these circumstances. You can name up to five people to be told, and they can be relatives and/or friends (but not your attorneys and/or replacement attorneys). However, you do not have to choose people to notify. Only complete this section if you want one or more persons to receive notification. For you For your spouse/partner 1. Full name (inc title): Address: Page 4

24 Telephone number: address: 2. Full name (inc title): Address: Telephone number: address: 7. Preferences not legally binding Your attorneys do not have to follow your preferences but they should keep them in mind when making decisions regarding your property and financial affairs. For example: I would like to maintain a minimum balance of 1,000 in my current account. I prefer to invest in ethical funds. My attorney(s) should consult with or report to other family members or an independent professional person. No preferences will be included unless you complete the following box. For you For your spouse/partner Please give details of any guidance that you would like your attorney(s) to consider when making decisions in your best interests. Page 5

25 8. Instructions - legally binding You may wish to impose restrictions or conditions on what your attorneys can do, although we usually recommend that you confer general authority in relation to all your property and affairs. For example, you may want to specify that: the attorney(s) authority to make gifts should be limited to a specific amount. We will include an instruction that your attorney(s) may delegate investment decisions to a discretionary manager. Where a professional attorney is appointed to act, you need to include an express provision authorising payment of the fees of the attorney or his or her firm from your assets, for work carried out for you. No restrictions or conditions will be included unless you complete the following box. For you For your spouse/partner Please detail any restrictions or conditions that you would like to include and we shall be happy to discuss them. 9. Certificate Provider You must choose someone to be the Certificate Provider for your LPA. The Certificate Provider will need to confirm that you understand the purpose and content of the document and the scope of the powers given to the attorneys; you are not under any undue pressure or duress to make the LPA and have not been pressured into making it; and there is nothing else that would prevent the LPA being created. Please note that the following people cannot act as Certificate Provider: individuals under 18 years of age; a member of either your or your attorney's family; a business partner or paid employee of you or your attorney(s); an attorney appointed in the proposed or another LPA or any EPA made by the donor; or the owner, director, manager or an employee of a care home in which you live (including care homes with nursing homes) or their family member or partner. There are two types of Certificate Provider: Category A (knowledge based Certificate Provider who knows you personally and has done so for a minimum period of two years) and Category B (skills based Certificate Provider whom you believe to have the relevant professional skills and expertise to provide the certificate. They would normally charge for their services and could be: Page 6