Powers of attorney now
The Mental Capacity Act 2005 was designed to improve the law relating to Powers of Attorney and reduce abuse. The result is that 4 pages documents creating the powers have been replaced by 25 pages or more. Anyone who wants to delegate the management of their affairs to someone they trust now has to clear several fences on the way to achieving their wishes.
The Act brought in two forms of Lasting Powers of Attorney for Personal Welfare and Property and Affairs.. For those lacking capacity, the Courts have reserved rights of intervention under section 16. In the case of welfare this extends to deciding where they live, what contact they should have with any specified persons including prohibition of access in certain cases, whether or not certain health treatment should be continued and If a different person should take over that treatment. In the case of property and affairs these powers relate to control and management of property, carrying on a business, entering into contracts, rewriting a person’s will and conducting litigation.. We had reason to defend some proceedings in the High Court on behalf of the Official Solicitor acting on behalf of another and successfully persuaded the Judge that it was not in the interests of this person to proceed against our client. If official neutral bodies cannot get it right it is as well to create powers of attorney to those individuals who can be trusted. This means at least one or two willing attorneys must be found, as well as a professional to explain these copious documents in detail to the grantor or two trusted laymen who have known the grantor for 2 years. The donor must then find two people to be notified who can object if they think necessary when the power is registered and then arrange for the power to be registered with the Public Guardianship Office.
The process of registration must then begin. The Court fee is £150 and if you get the application wrong this fee is lost forever and statistics reveal that out of 9263 applications made over the first 6 months of the scheme only 1256 were registered successfully. The powers are useless unless they are registered and the minimum time taken by the Court who does not even acknowledge applications is 3 months. There is no guarantee then that the documents will come back from London as a complete set as we have found and even if they are correct we have found in one case the Inland Revenue not accepting a certified copy despite the contents of section 3 of the Powers of Attorney Act 1971 informing them that the contents may be proved by a certified copy.
At least if you employ a solicitor to take responsibility for all this if the application fails
He will be a rogue if he does not refund the fees especially if you have to start again from scratch and things are getting worse not better.