As life expectancy is increasing in the UK, the importance and value of Powers of Attorney increase. At Saul Marine and Company, we have seen an increased demand from clients to prepare these documents.

Most Powers of Attorney are now written out in the form of a Lasting Power of Attorney, which documents need to be formally executed and can be registered at the Office of the Public Guardian.

The person giving the power is known as the Donor and usually the Donor will appoint an Attorney or more than one Attorney known as the Attorneys. The Donor must have mental capacity to give the Power; otherwise an application will be required to the Court of Protection for the appointment of a Deputy for the Donor’s affairs. The Attorneys must always act in the best interest of the Donor and in accordance with the principles under the Mental Capacity Act 2005.

The beauty of the Lasting Power of Attorney is that once registered, the Attorneys can continue to act on behalf of the Donor, even after the Donor loses mental capacity. Accordingly in the case of elderly parents the Attorneys can make decisions on the Donor’s behalf in relation to  for example running their bank and savings accounts, making or selling investments, paying their bills or buying and selling their property. This is an important and vital power,  e.g. where the elderly parent has lost mental capacity and needs to sell their home to pay for care home fees. An Attorney can also act on behalf of the Donor if the Donor needs to take court proceedings or needs to defend court proceedings.

The Lasting Power of Attorney  for health and welfare will cover issues in relation to care of the Donor, the issue of life-sustaining treatment (a serious operation or cancer treatment or artificial nutrition or hydration) or in the event that the Donor falls ill and covers these vital issues that are so important to the welfare of the Donor.

The Powers also have a provision that notices  are to be given to a person close to the Donor to inform him or her that the Power is  be registered and they have a statutory period to object if they have any concern about the creation of the Power.

The documents are complex and therefore require specialist help and assistance because if errors are made and the Donor loses mental capacity, these errors cannot be corrected.

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