Wills, trusts and probate solicitors
Powers of Attorney
A Power of Attorney is a legal document which allows you to appoint another person or persons (known as your attorney) to make decisions on your behalf. This can include acting in your financial affairs, dealing with your property and making decisions relating to your continuing health and care needs.
Loss of capacity is distressing under any circumstances but the effect can be felt even more profoundly if there are no arrangements in place to govern who can make decisions relating to the affected individual, their property and affairs, including finance and healthcare. This situation can be avoided by creating a Lasting Power of Attorney.
The power of attorney lawyers at Morrisons Solicitors help clients with all aspects of setting up a Lasting Power of Attorney, including choosing and appointing attorneys, and ensuring that your wishes are accurately reflected in any documentation, particularly in relation to finance and healthcare.
A Power of Attorney is a legal document which allows you to appoint another person or persons (known as your attorney) to make decisions on your behalf.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney provides an individual or individuals with the legal authority to manage an incapacitated person’s affairs. This authority can also be extended to apply whilst the person making it (known as the donor) still has capacity, which might prove useful if the donor is elderly or physically incapacitated in some way.
What are the two types of Lasting Power of Attorney?
A property and financial affairs Lasting Power of Attorney
This allows your attorney to act in relation to your property and financial matters, as you specify. This authority can be granted even whilst you still have mental capacity if you specify this in the document.
A health and welfare Lasting Power of Attorney
This allows your attorney to make decisions on your behalf in respect of your general welfare, including medical care, but only when you lack mental capacity to decide for yourself. This could also extend, if you wish, to granting your attorney the authority to permit or refuse life-sustaining treatment.
Who can be my attorney?
A Lasting Power of Attorney, like any power of attorney, is an important document and you should take care when deciding who to appoint as your attorney. An attorney should be trustworthy and have the appropriate skills for making the proposed decisions.
You may appoint more than one person to act as your attorney. If you appoint more than one attorney, you can appoint them to act together at all times, or to act together and independently. It is important to seek professional advice in order to decide upon what terms the Lasting Power of Attorney should operate which, in turn, will help to avoid problems arising in the future when using the Lasting Power of Attorney.
You may also choose to appoint a successor to your attorney in case the original attorney dies or is otherwise unable to act for you. It is a good idea to plan for this scenario and to include the appointment of a replacement attorney at the outset, particularly as the appointment of a new attorney would require a new Lasting Power of Attorney to be drawn up. It is not possible to amend an existing Lasting Power of Attorney.
What is the process for setting up a Lasting Power of Attorney?
The Lasting Power of Attorney must be signed by you and by everyone who is appointed under it to act either as your attorney or as a replacement attorney.
Your signature must also be certified by another suitably qualified or knowledgeable person, who can confirm that you understand the nature and scope of the Lasting Power of Attorney and have not been unduly pressured into making the power. It is possible for us to act as your Certificate Provider in most cases, although there are some situations where the appointment of an alternative individual is deemed to be more appropriate. We would be happy to advise you on the options.
The Lasting Power of Attorney must then be registered with the Office of the Public Guardian before it can be used, which we can facilitate on your behalf should you wish.
What if I have made an Enduring Power of Attorney?
Enduring Powers of Attorney were replaced by Lasting Powers of Attorney in 2007 in the sense that it was no longer possible to create a new Enduring Power of Attorney after this time. However, Enduring Powers of Attorney validly made before 1st October 2007 will continue to be effective, but only in respect of decisions affecting your property and financial affairs. If you wish to grant authority over decisions relating to your health or welfare you will need to make a separate Health and Welfare Lasting Power of Attorney.
What happens if I have not made a Lasting Power of Attorney or Enduring Power of Attorney and I lose mental capacity?
If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for someone to be appointed as your deputy to make decisions on your behalf. This is a costly process and it can take many months, during which time there will be nobody with the necessary authority to deal with your affairs. The decision over who should act as your deputy also rests with the Court, and so the person acting for you may not be the person that you would have otherwise chosen.
In some cases, decisions relating to your health and welfare can be made on your behalf without the need for a formal Court application. However, you can avoid potential disputes about who should make these decisions for you by setting up a Health and Welfare Lasting Power of Attorney. This will also allow you to formally record any preferences that you would like your attorney to have regard for when making these types of decisions.
General or ordinary powers of attorney
Powers of attorney can be used for specific purposes or granted for a defined period of time. For example, you may be planning to travel abroad and foresee the need for paperwork to be signed in your absence.
This type of power of attorney is known as an ordinary power of attorney or general power of attorney. You can grant the appointed person general authority to do anything you would do yourself, or you can restrict the power so they are only allowed to do certain things, such as buying or selling a house or operating a bank account.
The power of attorney will only be effective whilst you still have mental capacity. Therefore, it is important to seek advice to ensure that your affairs can continue to be managed effectively in the event that you have lost capacity.
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