It can be difficult to think about a future where you may need help in making decisions about your finances or your personal care.
Although no one likes to think about losing the ability to manage their own affairs, it can happen, and it is important to consider who you would wish to nominate to do this for you should the need ever arise, and put safeguards in place to minimise the impact on your property and loved ones at what can be a very difficult and stressful time.
For example, you could lose mental capacity through a serious illness, such as dementia, or a serious accident, or you could lose the physical ability to get to the bank or to sign cheques. Or you may be in good health, but simply wish to take an extended break and wish others to manage your affairs in the meantime.
Power of Attorney - Frequently Asked Questions
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document by which you can give other people, called attorneys, legal authority to make certain decisions on your behalf.
There are to types of Lasting Power of Attorney: Property & Financial Affairs, and Personal Welfare, but you do not necessarily have to create both types. You can make one or the other, or both, depending on your circumstances.
Do I need a Lasting Power of Attorney?
If you suddenly became unable to make your own decisions, for example if you had an accident or a stroke, or you found yourself in the early stages of dementia or Alzheimer’s:
- Who would pay your bills?
- Who would be able to access and manage your bank accounts?
- Who would have the authority to sell your home if this became necessary?
When can your Attorney act?
First, you must sign your Lasting Power of Attorney, and then it must be certified by a person (who can be a long-time friend or a professional) to confirm that you understand its scope and effect and the power it gives to your attorneys and that you have not been unduly pressured into making it.
Your Lasting Power of Attorney must then be registered with the Office of Public Guardian before it can be used.
A Lasting Power of Attorney for Property and Financial Affairs can be used both when you have the mental capacity to make your own decisions, and when you do not. However, if you still have the capacity, it can only be used with your express authority.
A Lasting Power of Attorney for Health and Welfare can only be used if you lack the mental capacity to make or communicate the decision yourself.
What happens if you have not made a Power of Attorney?
If you lose the capacity to make your own financial decisions and you have not made a Lasting Power of Attorney before you do so, your spouse or other loved ones will have to make an application to the Court of Protection for a Court Order to give them the power to manage your affairs. This is expensive and time-consuming, and your wishes will not be taken into account. Ultimately, the Court decides who should act on your behalf, and this may or may not be the person you would have chosen. To avoid this scenario, it is essential that you make a Lasting Power of Attorney for Property and Financial Affairs.
Many medical and care decisions can be made on your behalf without the need for an application to Court. However, it may not necessarily be your family who has the final say, particularly in decisions about your living arrangements and medical treatment, as the medical staff or other authorities may have the final say if they are not in agreement with your family as to what is in your best interests. If you wish to avoid potential disputes and to nominate the people you wish to make these decisions on your behalf or to set out any particular wishes you may have, then it is essential that you make a Lasting Power of Attorney for Health and Welfare.
If you cannot answer these questions, then you should make a Lasting Power of Attorney.
The two types of Lasting Power of Attorney are:
- A Lasting Power of Attorney for Property and Financial Affairs – which gives your attorney(s) authority to manage your property and finances.
- A Lasting Power of Attorney for Health and Welfare – which gives your attorney(s) power to make decisions about your healthcare and personal welfare, and enables you to set out your wishes in this regard, for example by giving or refusing consent to life-sustaining treatment in certain situations.
Choosing Your Attorney
This is an important decision which you should consider very carefully. Your attorney must be someone who you trust and who has the appropriate skills to enable them to make the necessary decisions in your best interests.
If you appoint more than one attorney, you can either appoint them to act alone or jointly and severally (in which case they can either act together or independently of each other).
These are important decisions, on which you should seek professional advice. You can even appoint your attorneys to act jointly for some decisions and jointly and severally for others, although we strongly advise only doing so with the appropriate advice, as this can cause problems for your attorneys in using the power in the future.
You can also appoint replacement attorneys to act for you in the event that your first choice of attorney dies or is unable to act for you for any reason when the time comes.
For more detailed advice or information, please contact Miles Astbury-Crimes or Sarah Owens on:-
Main office number: 01216869444
We are happy to visit you at your home, and we can provide you with essential advice in making this very important decision.