On 18 September 2023 the Powers of Attorney Bill received Royal Assent and became an Act of Parliament, the Powers of Attorney Act 2023.
The Powers of Attorney Act 2023, which makes amendments to the Mental Capacity Act 2005, will allow major changes to be made to the Lasting Powers of Attorney process with the intention of modernising the process and offering greater safeguarding procedures.
What are powers of attorney?
Lasting Powers of Attorney are valuable legally binding documents, which allow individuals (called Attorneys) appointed by you, to make decisions about you and enable the individuals to act on your behalf in the event that you are unable to do so yourself.
There are two types of Lasting Powers of Attorney:
Lasting Powers of Attorney for Health and Welfare
This type of Lasting Powers of Attorney allows you to appoint Attorneys to assist you with decisions relating to your health and welfare. Such decisions can include personal care needs including where you live, care packages, medical needs etc.
It is important to understand that Lasting Powers of Attorneys for Health and Welfare can only be used in situations where you do not have the mental capacity to make these types of decisions for yourself.
Lasting Powers of Attorney for Property and Finances
This type of Lasting Powers of Attorney allows you to appoint Attorneys to assist you with your property and financial affairs. These can include dealing with financial institutions in relation to accounts you hold on your behalf and paying for packages of care to allow you to stay at home or in a care home.
Unlike Lasting Powers of Attorney for Health and Welfare you can choose to allow your Attorneys to assist you whilst you still have capacity and also when you have lost capacity. Appointing Attorneys to act whilst you still have capacity can be extremely useful in certain situations for example if you are unexpectedly taken into hospital and require assistance paying for bills etc.
You do not need to choose the same attorneys for both types of documents, but can if you so wish. Making these documents are an important part of giving you the control to appoint the people who you trust and feel best suited to make decisions for you should you be unable to.
What changes are intended to be made under the Powers of Attorney Act 2023?
Due to an increasing aging population and a greater awareness of the need of Lasting Powers of Attorney, more people are choosing to make these documents.
This increase in demand is causing long delays in registering Lasting Powers of Attorney with the Office of the Public Guardian (it is important to note that the documents must be registered with the Office of the Public Guardian before they can be used).
Whilst we do not yet know what changes will actually be made, the intention of the Powers of Attorney Act 2023 is to:
- modernise and speed up registration, through creating an online process for making and registering Lasting Powers of Attorneys (currently registration can only be made in paper form);
- improve the paper application process for those unable or not wishing to use the online process;
- enforce identity checks on individuals as part of the registration process, which will protect against fraud; and
- enhance safeguarding procedures by expanding the parameters of those people who can object to a chosen attorney.
Any changes made under the Powers of Attorney Act 2023 will not happen immediately. How and when they will be enforced will be announced in time.
How can Whitehead Monckton help?
At Whitehead Monckton our experienced Tax and Estate Planning team will be closely watching to see how these proposed changes evolve and will be ready to advise accordingly.
It is important to note that the changing law surrounding Lasting Powers of Attorney highlights the need to take appropriate legal advice for those who are considering making these documents.
If you require any further information or advice or would like to discuss making Lasting Powers of Attorney, please contact a member of our team today.