Enduring Power of Attorney: "October the first is too late"

...to quote the title of a Fred Hoyle novel.

There are big difficulties in handling the affairs of someone who has become mentally incapacited. Even a spouse is not automatically assumed to have the right to sell or otherwise manage property belonging to the affected person - or jointly owned with him/her.

This is where an Enduring Power of Attorney comes in. It gives advance permission for someone to look after your investments and other possessions, if you can't. (This permission can be altered or withdrawn before that event.)

Why not simply use an ordinary power of attorney? Because this power is given on the legal understanding that you can step in and reassume control whenever you wish. Obviously, if you're in a coma, you can't, so normal power of attorney ceases to have effect in such circumstances.

Does it matter? Yes: as well as physical, there can be financial abuse of the mentally disabled and other legal minors, which is why these matters come under the Court of Protection (within the Chancery division - remember Dickens' "Bleak House", which exposed legal abuses of protected persons' estates?)

Is this a rare eventuality that you can afford to ignore? No. Here's some statistics:

Although there are no precise statistics about the number of people who may lack capacity in the country, the Mental Capacity Act Implementation Programme has estimated a range of 1 – 2 million, including some of the following:

• Over 700,000 people with dementia (rising to 840,000 by 2010)
• 145,000 people with severe learning disability and 1.2 million with mild to moderate learning disability
• 1% of the population with schizophrenia, 1% with bipolar disorder and 5% with serious or clinical depression at some stage in their lives
• 120,000 people living with the long-term effects of a severe head injury

Source: MHCA Briefing Paper, 2005

At the moment, it's a short and fairly simple form, that only needs the names of your potential attorney/s and a couple of signatures. So it's easy -often part of a legal services package offered by professional will writers - and therefore cheap. 22,508 EPAs were registered with the Public Guardianship Office last year (source: PGO Annual Report 2006-2007). Should the need arise, the named responsible person/s take the form and have it registered with the PGO (see Alzheimer's Society information on EPAs and their successors).

But from October 1st, it will be replaced by "Lasting Power of Attorney". This will be over 20 pages long and much more expensive to arrange - one legal firm estimates up to £600 instead of their current fee of £75 (see Daily Mail article, 22 August).

So it looks like a good idea to do it now.

By the way...

There will be two types of Lasting Power of Attorney. The first is the new and more expensive version of an Enduring Power of Attorney; the second is a form of what is known as an Advance Directive, or "Living Will".

An Advance Directive gives permission to others to make decisions about your healthcare if you're disabled - the life-support machine question, for example. There are serious ethical and religious issues about this, and I'm a bit suspicious of these two quite different legal documents being given the same name from October - it's as though the government is keen to get you to sign away your right to life (e.g. perhaps for budgetary reasons).

And isn't is a little revealing that a Court (of Protection) has been replaced by an Office (of the Public Guardian)? Perhaps part of the airbrushing of the Monarchy out of our Constitution - more revolution by stealth.