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A Power of Attorney could be compared to taking out an insurance policy so that you can be sure that your affairs will be looked after by a trusted person when that becomes necessary. Your Attorney can only make decisions after the document has been registered at the Office of the Public Guardian (OPG).
Should circumstances change or illness or accident impair your decision-making, you can register the document and allow your Attorney to start making decisions about your future care and medical treatment, as well as your finances.
Provided it can be established that the donor has the capacity to understand what they are doing (mainly through the independent certification) there is nothing to prevent someone considered ‘vulnerable’ from making such an arrangement. They too have the right to choose the people they want to make decisions on their behalf when they lack mental capacity.
The powers granted to your Attorney depend on the type of LPA made. There are two kinds of lasting Power of Attorney. One can be made without the other, however both must be registered with the Office of the Public Guardian before the appointed Attorney can start to make decisions.
Health and Welfare LPAs cannot be used until it is established that the donor lacks capacity to make those decisions themselves. It is also possible to place a restriction on a Property and Financial Affairs LPA so that it too cannot be used until the donor has demonstrably lost capacity.
When you decide the time has come to allow your Attorney to start work, the Lasting Power of Attorney must be registered at the Office of the Public Guardian (OPG). The OPG is an executive agency of the Ministry of Justice set up in 2007 operating within the framework of the Mental Capacity Act 2005. Any authority granted in the legal documents can only come into effect when the LPA is registered and, in the case of a Health and Welfare LPA, only when the person making it is shown to lack capacity.
Your Attorney cannot usually make a Will for you, so it is wise to make an up to date Will in any event. There are also strict rules on the gifts an Attorney can make on your behalf which a solicitor can advise you on. We can provide legal advice that ensures your LPA reflects your wishes and supports your family.
Anyone with concerns about the behaviour of Attorneys or thinks what they’re doing needs to be stopped urgently should report them to the Office of the Public Guardian (OPG) which registered the Power of Attorney. Once you’ve raised your concerns, someone from the OPG will investigate and if they think something’s wrong, they can give more detailed instructions about how they should act or recommend that the Court of Protection suspends or permanently removes the Attorney.
The OPG can at the very least ask the Attorney to explain their actions, and take things further if they’re not satisfied with the answer. If anyone believes the Attorney or their actions might put the person they are acting for in physical danger, the police should be alerted straight away. Appointing a professional Attorney such as a solicitor can help avoid these problems but our team can give advice and guidance to anyone concerned about how Attorneys (or Deputies) are fulfilling their role.