Powers of attorney
It is something that you should think about when planning for your future and could be created at the same time as you make a Will, if not before
A Lasting Power of Attorney is an official legal document allowing you to appoint one or more people to make decisions on your behalf if you become unable to do so.
The Lasting Power of Attorney has two elements which can be made separately or together:
Lasting Power of Attorney Property and Financial Affairs
This allows you to choose a person you trust to make decisions about how to spend your money and the way your property and affairs are managed. The LPA will allow your attorneys to deal with your property and finances as you specify. It will allow them to pay your bills or collect your income. It would also allow them to buy or sell property on your behalf and to run your bank accounts and your investments.
Once registered, and unless you have put a restriction on it, this type of LPA can be used by your attorney(s) straight away. LPAs replaced Enduring Powers of Attorney (EPA) from 1st October 2007, although any EPAs made before that date are still effective.
The Health and Welfare Lasting Power of Attorney
The Health and Welfare LPA allows you to appoint a person to look after your personal welfare and healthcare. It allows your attorney(s) to make decisions regarding your welfare and health care if you have lost mental capacity. It would allow them to decide on where you live, the type of healthcare and medical treatment that you would receive, including life sustaining treatment. It would also cover day to day matters such as your diet and daily routine.
Why should you have an LPA?
If you lack the capacity to make a decision and don’t have an LPA, it can cause a lot of distress and hassle for your relatives as they will probably have to apply to the Court of Protection for an order to act on your behalf.
This process can be very time consuming and costly. It can also cause disagreements between family members, especially if they have different ideas about what is best for you, particularly if you never had the difficult conversations with them before you lost capacity.
Who can you appoint as your attorney?
When choosing your attorneys, you need to think very carefully. An LPA is an extremely powerful document as you are handing over key decisions about your life, your welfare, your assets to someone else. So, you should choose people who are responsible, trustworthy and have the appropriate skills to make the decisions you set out in the LPA.
You can appoint anybody who is at least 18 years of age and not bankrupt (for the property and financial affairs LPA). An attorney can be a family member, another trusted person or a professional adviser such as a solicitor who specialises in LPAs.
You can appoint more than one person to act as attorney. If you appoint more than one attorney, you can appoint them to act together at all times, or to act together and independently in certain specified matters. The decision on which way to operate should only be taken after professional advice, in order to avoid problems arising in the future when using a lasting power of attorney.
Can you change your mind once the LPA is in place?
You can cancel your LPA at any time provided you have the mental capacity to do so, even if it has been registered with the OPG. If is not cancelled, the LPA will last until you die.
If you decide to change your attorneys, you will need to cancel your current LPA and make a new document. The new document will need to be registered before it can be used.
You may also choose to appoint a successor to your attorney, in case the attorney dies or is otherwise unable to act for you. This ensures you create a document that will last.
How can a lasting power of attorney be used?
Powers of Attorney can be used in many circumstances: you may be abroad, or suffering from illness or injury; or you may be busy and need someone else to deal with matters.
A lasting power of attorney will normally only be effective within the United Kingdom, though its authority is increasingly recognised in some foreign countries.
When can the attorney act?
The attorney will only be able to act when the Lasting Power of Attorney has been signed by you and by everyone who is to act as your 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.
The lasting power of attorney must then be registered with the Office of the Public Guardian before it can be used.
A property and financial lasting power of attorney can be used both if you have capacity to act and if you lack mental capacity to make a financial decision.
A Health and welfare lasting power of attorney can only be used if you lack mental capacity to make a welfare or medical decision yourself.
SFE members can offer the lasting power of attorney guidance you need to make navigating these processes as stress free as possible.