Powers of Attorney. Introduction

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1 Powers of Attorney Introduction This leaflet explains what powers of attorney are and how they operate. It also sets out how the Church of England Pensions Board ( the Board ) deals with powers of attorney and the conditions under which they will accept instructions under such powers. The principal aim of the Board in setting conditions as to when it will act under a power of attorney is to ensure that the member or pensioner s affairs are being handled properly and that they are not being exposed to fraud or other risk. Purpose of a Power of Attorney A power of attorney is a document whereby a person (the donor ) gives authority to another person or persons (the attorney ) to handle some or all aspects of their financial and other affairs. Types of Power of Attorney There are various types of powers of attorney. Ordinary Power of Attorney An ordinary power of attorney is used where someone wants to appoint another person to handle their affairs, even though they remain capable of doing so themselves. It is often used to appoint someone to handle a specific type of transaction, for example the sale of a house while the donor is overseas. Such a power is often time limited. An ordinary power of attorney ceases to have any effect, and cannot continue to be used, once somebody loses mental capacity, ie they are unable to handle their affairs themselves, perhaps because of dementia. The Board will not normally accept instructions, such as a change of address or change of a pensioner s bank details, under an ordinary power of attorney. As the member or pensioner remains mentally capable of giving the instruction themselves, then the Board requires them to do so (but see special

2 circumstances below). The principal reason for this is that the Board has no way of knowing whether the donor has become mentally incapable and therefore if the ordinary power of attorney remains valid. Enduring Power of Attorney (EPA) An EPA allows a donor to appoint an attorney or attorneys with the explicit intention that they will continue to be able to act even when the donor has lost mental capacity. Once the donor has lost, or is losing, mental capacity then the EPA must be registered with the Office of the Public Guardian ( OPG ), which is an agency of the Ministry of Justice. Until it has been registered, it is effectively just an ordinary power of attorney and so loses its effect when the donor loses mental capacity. Registration is a fairly straightforward process, and does not usually require a solicitor, although some people do find it helpful to employ a solicitor to assist. The attorney(s) must notify the donor and specified relatives of the intention to apply for registration. The necessary forms and instructions can be found on the OPG s website (see further information ) below The Board will only accept instructions under an EPA once it has been registered. Sight of the registered document, or a copy certified by a solicitor, is required. Please note that a solicitor s copy of an unregistered EPA is not acceptable. With effect from October 2007 it is no longer possible for new EPAs to be established. However, an EPA completed prior to October 2007, whether or not registered, remains valid, and it is still possible to obtain registration as described above.

3 Lasting Power of Attorney (LPA) Lasting Powers of Attorney were introduced from October 2007 under the Mental Capacity Act 2005, and replace EPAs. There are two types of LPA: A property and affairs LPA, which is for decisions about finances, such as selling the donor s house or managing their bank account; and A personal welfare LPA, which is for decisions about both health and personal welfare, such as where to live, day-to-day care or having medical treatment. An LPA must be registered with the OPG before it can be used. An unregistered LPA will not give the attorney any legal powers to make a decision for the donor. The donor can register the LPA while they have capacity, or the attorney can apply to register the LPA at any time. Full details of how to register an LPA can be found on the OPG s website (see further information below). As an LPA has no effect until it has been registered, the Board can only accept LPAs which have been registered. Sight of the registered document, or a copy certified by a solicitor, will be required. Special Circumstances From time to time a situation will arise where a member or pensioner is unable to sign a form or letter of instruction even though they retain the mental capacity to do so. Examples of such situations may be where the person is unable to write because of severe arthritis, or is blind. In such situations the Board will accept an instruction from another person subject to the following provisos: The person signing the form includes the statement I hereby declare that this document has been signed on the instruction of [name of scheme member or pensioner] who retains mental capacity but is unable to sign [himself/herself] because [reason why the member or pensioner is unable to sign].

4 The document is signed by two other people (not relatives of the person on whose behalf the document is being signed) who have witnessed the member or pensioner giving the instruction. What can be done if someone has lost mental capacity but has not completed a power of attorney? When someone has already lost mental capacity they are unable to complete a power of attorney. In that situation it is possible to apply to the Court of Protection to be appointed as a deputy (known as a receiver prior to October 2007). The Order made by the Court will set out the extent of the deputy s powers. The powers given will depend on the needs of the person the deputy has been appointed to assist and also the Court s decision. Information about applying to be appointed a deputy can be found on the OPG s website (see further information below). Further Information The website of the Office of the Public Guardian contains detailed information on all aspects of powers of attorney and the work of the OPG and the Court of Protection. The website address is The OPG can be contacted at: Archway Tower 2 Junction Road London N19 5SZ Phone Number: This leaflet is a summary of the provisions relating to powers of attorney and cannot cover every aspect of their operation. It represents the Board s understanding of current legislation but should not be relied upon as an authoritative statement of the law nor as constituting advice. Legal advice should always be sought in the event of any uncertainty.

5 Sidebar 1 Glossary Donor Attorney Deputy Office of the Public Guardian The person appointing another person or persons to act on his or her behalf The person appointed by the donor to handle the donor s affairs A person appointed by the Court of Protection to administer the affairs of another person An agency of the Ministry of Justice. The OPG helps and supports attorneys and deputies in carrying out their duties and protects people who lack the mental capacity to make decisions for themselves Sidebar 2 What is mental capacity? Every day we make decisions about lots of things in our lives. The ability to make decisions is called mental capacity. People may have difficulties making some decisions either all or some of the time. This could be because they have: a learning disability dementia a mental health problem a brain injury or a stroke The Mental Capacity Act for England and Wales will affect people in these situations. It will also affect their families, carers, health and social care staff, and other people who may have contact with them. The Act could cover all sorts of major decisions where a person may lack capacity, about things like social care, medical treatment and research arrangements, financial matters as well as everyday decisions like what to eat and what to wear. Source: Extracted from the website of the Office of the Public Guardian

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