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Warning: These articles were originally published as brief newspaper articles. The articles are not intended to be definitive advice on any particular set of circumstances. The authors and the firm of Nicholson Portnell accept no liability for any use of these articles. Specific legal advice should always be sought in all cases for any actual transactions or matters.

Lasting Powers of Attorney and Registration of Enduring Powers of Attorney - July 2009

John Humble

Lasting powers of attorney became valid from 1st October 2007 and replaced enduring powers of attorney. They grant authority to the attorney to manage the donor’s affairs and can cover financial and property matters and/or health and personal welfare issues.

However, enduring powers of attorney created before this date will still be valid. It is often forgotten that when an attorney has “reason to believe that the donor is or is becoming mentally incapable” he or she must, as soon as practicable, apply to register the enduring power of attorney. The application for registration is made to the Office of the Public Guardian. It is quite straightforward, speedy and relatively cheap to carry out. The donor, and certain next-of-kin, must be informed of the pending application, and, when this is done, the application is sent to the Office of the Public Guardian with a fee of £120.00. While the enduring power of attorney is in the course of being registered, the attorney has limited powers to look after the financial affairs of the donor.

It should be remembered that: -

(1) In the event of a person without a lasting or enduring power of attorney becoming mentally incapable, the Court of Protection must look after that person’s financial affairs. The process is expensive and time-consuming;

(2) To avoid a Court of Protection application it is always advisable to make a lasting power of attorney;

(3) If there is an existing enduring power of attorney made before 1st October 2007, that power of attorney is still effective but must be registered if the attorney has reason to believe that the donor is, or is becoming, mentally incapable.

If you would like advice on any of the issues raised above, please do not hesitate to contact us.

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