The need for an attorney - your own Counsellor of State

Earlier this month Buckingham Palace announced King Charles has been diagnosed with cancer. 

There has been much discussion in the news of what duties he will be carrying out whilst receiving treatment and who in the Royal Family can deputise for him.  The topic of Counsellors of State, those authorised to undertake constitutional duties on the King's behalf, has been raised and a list of who is a Counsellor of State provided.  Whilst no-one else in the UK has the dilemma of who can fulfil these Head of State duties whilst they are unwell, it does raise the important question of who can act on your behalf in administering your affairs if you are unable to do so. 

Without the appropriate legal documentation no-one has the authority to make decisions on your behalf if you have lost capacity to make those decisions yourself.  This includes including paying bills, managing bank accounts, selling property and managing investments. There is a common misconception that a spouse has authority to deal with the other’s affairs. This is not the case and a spouse must still have the appropriate legal authority to act. Even the King will probably need a power of attorney to cover his personal affairs.  

Capacity 

Under the Mental Capacity Act 2005, everyone over the age of 16 is presumed to have capacity unless it is proven otherwise. Even if you have a Power of Attorney in place (see below) your attorneys must allow you to make your own decisions where you are capable of doing so.  It is important to note that capacity must be assessed for each decision and at the time the decision is made. 

For those diagnosed with cancer their capacity can fluctuate whilst they are having treatment.  They may need someone to assist them temporarily whilst having treatment and capacity may return once the treatment has finished. For others their capacity may deteriorate as their physical health, so they may need more and more support over time.  For others, their capacity may not be affected at all but they may need physical assistance in implementing financial decisions, for example they may need someone to sign documents on their behalf or go to the Bank for them. Therefore, for anyone facing a cancer diagnosis they will need to consider who can assist them if and when their physical and/or mental health deteriorates and ensure the appropriate legal documentation is in place. 

Enduring Powers of Attorney

Any Enduring Power of Attorney (EPA) made prior to October 2007 remains a valid document and can still be used by the attorneys. It was common for EPA’s to include a restriction saying the EPA could only be used if the person making the EPA (the donor) has lost capacity. This means the attorneys cannot use the EPA if capacity fluctuates or if the donor is unable to deal with matters themselves due to a physical illness.  In those circumstances the donor should revoke the EPA and make a Lasting Power of Attorney. 

If the donor is losing or has lost capacity the EPA must be registered with the Office of the Public Guardian (OPG). We’ve seen examples where this registration requirement isn’t complied with and this can cause difficulties when the EPA needs to be used. 

Lasting Powers of Attorney (LPA). 

Since 2007, to appoint attorneys, a donor has had to sign an LPA.  LPAs must be registered with the OPG before they can be used by the attorneys.

There are two types of LPAs; one for Property and Financial Affairs and another for Health and Welfare.  We recommend both LPAs are put in place to ensure the person can be supported in every aspect of their lives. Different attorneys can be chosen for the different roles according to either the attorneys relationship to the person making the LPA, or the attorneys strengths in those different areas.

The Property and Financial Affairs LPA can be used by the Attorney before the person making the LPA (the donor of the LPA) has lost capacity. However this can only be done with the donor's permission. The donor must be allowed to make their own decisions where they are capable of doing so. However the attorneys can assist with implementing decisions.

The Health and Welfare LPA, can only be used when the donor no longer has capacity to make a decision in relation to their health or welfare. 

For an LPA to be valid, the donor must be able to demonstrate to the person acting as the certificate provider (the person signing to say the donor has capacity to make the LPA) that they understand what an LPA is, who they are appointing and why, the types of activities the attorneys can undertake for them, the consequences of not having an LPA and how this can be revoked. Therefore, on a diagnosis of any illness it is important to ensure you have valid powers of attorney in place to ensure the opportunity to make the LPAs is not missed. 

Deputyship

If someone doesn’t have an EPA or LPA in place and doesn’t have capacity to make a LPA then someone connected to them or in some cases a professional should apply to the Court of Protection for a deputyship order. A deputyship order will give the applicant the authority to manage the financial affairs on their behalf.

How we can help

We can assist in assessing whether or not it is possible for a LPA to be made.  We can prepare the LPAs or the deputyship application or register the EPA.  We can also advise attorneys and deputies on their role.