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02. Court of Protection

Lasting Powers of Attorney or Deputyship

As the population of England ages there has been an increase in demand for the management of the affairs of those who are no longer capable of dealing with their own affairs personally. If one has the foresight it is possible to choose who that administrator might be.

Whilst powers of attorney have existed for some time, until 1985 it was not possible to create a power of attorney that remained effective after the donor became incapable of ratifying the power. However since the Enduring Powers of Attorney Act was enacted in 1985 it has been possible to appoint an Attorney to deal with one's financial affairs which will continue even when one is no longer capable. Many Enduring Powers of Attorney are now in existence and continue to be valid during the lifetime of the donor.


However in 2007 a new form of Power of Attorney was created -the Lasting Power of Attorney. Lasting Powers of Attorney can now cover not only your financial affairs but also your health and welfare issues, although unfortunately a separate document is required for each. Enduring Powers of Attorney can no longer be made but those made before 2007 remain effective. 

Both Enduring Powers of Attorney and Lasting Powers of Attorney can be effective even though the donor has not become incapable. In the case of Enduring Powers of Attorney they are immediately effective once signed unless the power given by the deed itself directs to the contrary. Lasting Powers of Attorney however are not valid until they have been registered with the Office of the Public Guardian but are nevertheless then valid irrespective of whether the donor has retained capacity or not. Enduring Powers of Attorney need to be registered once the donor has become incapable, which can sometimes be a delicate subject to address. In both cases however whilst the donor has the capacity to act personally they may continue to do so despite the existence of the power of attorney. Whilst the donor retains capacity they are also free to revoke the power given at any time.

There are many issues to decide when appointing an Attorney. Not only whether the Attorneys are to have immediate power to assist you or whether your powers are to be deferred until such time as you might become incapable. In addition you may choose to appoint one or more Attorney and if more than one whether they are to act jointly or jointly and separately. You may also appoint substitute Attorneys to take the place of any Attorney who has died or is unable to act on your behalf and there are additional safeguards incorporated in the document such as the opportunity to have people notified of any application for registration. The Lasting Power of Attorney can also include specific powers for your Attorney or limitations on the extent of their powers and in the case of health and welfare powers may set out your specific wishes as to future medical treatment. As a protection against the frailties of old age Lasting Powers of Attorney are an excellent safeguard and above all they are cheap to administer.

In many instances however there is no Enduring or Lasting Power of Attorney in existence when someone becomes incapable. In such cases it is open for a close family member or friend to apply to the Office of the Public Guardian for the appointment of a Deputy. The administration of the Deputy's management of your affairs can be a lengthy and costly procedure compared with the use of an Enduring or Lasting Power of Attorney. However the function of the appointed Deputy is similar. Sometimes the Deputy is given only limited powers by the Office of the Public Guardian and must subsequently ask for further directions if the powers are not sufficient. Nick Pinks has over 30 years' experience of the preparation of Powers of Attorney and in dealing with the Office of the Public Guardian.

Cotton Branch

Over 40 years of Accumulated Practice

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If you would like advice on the preparation of a Lasting Power of Attorney for your Financial Affairs or for your Health and Welfare or to consider the registration of a Power or the appointment of a Deputy please contact Nick Pinks.

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