A lasting power of attorney isn’t nice to think about a time when you may not be able to take care of your affairs, it is necessary to do so. If you were to become unable to make crucial decisions because of a medical situation such as an illness or accident, you would need someone to make these decisions for you.
When you have a Lasting Power of Attorney in place, you ensure that people you trust can make essential choices about your welfare. It will also offer peace of mind as you know that your wishes will be followed if you are unable to make decisions for yourself.
A Lasting Power of Attorney will make it easier for your family as they will have a clear idea of who is responsible for these decisions as well knowing who has the authority to carry them out.
Why is a Lasting Power of Attorney so important?
If you do not have a Lasting Power of Attorney in place, there will be no one with the legal authority to manage your affairs. So nobody will be able to access your bank accounts or make decisions about your day-to-day or medical care.
In this case, someone would need to apply to the Court of Protection to gain the authority to make decisions for you. It can be a complicated and expensive process, so its best to avoid the situation by appointing an attorney.
How does a Lasting Power of Attorney work?
A Lasting Power of Attorney is set up to take into account your needs and preferences. You can appoint more than one attorney, and this is highly advisable. These attorneys can work together in some areas and separately on others. You can set up your Lasting Power of Attorney document to your specific requirements. You can also include binding instructions as well as general preferences.
There are two types of Lasting Power of Attorney (LPA), a Health and Welfare LPA and a Property and Financial Affairs LPA.
A Health and Welfare LPA
A Health and Welfare LPA gives your attorney the power to make decisions about your living arrangements and medical care if you are unable to make these for yourself. This power can only be used if you lack the mental capacity to make these decisions yourself.
Property and Financial LPA
A Property and Financial Affairs LPA gives your attorney the power to make decisions about your financial affairs. This can include managing your bank accounts, paying bills, collecting your pension, and if necessary, selling your home.
This document can be set up in two ways. Either you can restrict it so that it only comes in to effect if you do not have the mental capacity to make financial decisions for yourself. Alternatively, you can choose for your attorney to manage your financial affairs on your behalf if you are suffering from an illness or have limited mobility.
How to choose someone to appoint as your attorney?
There are certain restrictions as to who can be appointed as your attorney. For example, they must be over 18, and they should not be an undischarged bankrupt. Of course, you should have a good relationship with the person, and if you are choosing more than one attorney, they should have a good relationship with each other. You should select a person who is trustworthy and has the necessary skills to make decisions on your behalf.
Additionally, they should clearly understand the role and agree to be your attorney.
It is worth discussing your choice of attorney with your solicitor to ensure that all legal requirements are met and that you understand the process thoroughly.
How do you apply for Lasting Power of Attorney?
It is generally advisable to set up both a Health and Welfare LPA and a Property and Financial Affairs LPA at the same time. Many people do this when writing or revising their will, and you may be able to use the same solicitor for this.
When you appoint someone, they will become your attorney and you are known as the donor. It is advisable to select more than one person as your attorney. This protects you against any potential abuse of power as well as providing continuity if one attorney was unable to act for any reason.
It is a good idea to talk to your solicitor about this decision as they will be able to advise you and handle all the paperwork and registration for you.
However, you can apply online for power of attorney at GOV.UK. Alternatively, contact the Office of the Public Guardian for an application pack. You need to register a power of attorney before it comes into force. You can do this at GOV.UK.
Can you cancel a Lasting Power of Attorney?
You can cancel your Lasting Power of Attorney at any time as long as you have the mental capacity to make that decision. If you decide to cancel your LPA, you must tell your attorneys and inform the Office of the Public Guardian so they can remove the LPA from the register.
Under certain circumstances, a power of attorney automatically ends, for example, if,
- the attorney or donor dies
- the attorney or donor becomes bankrupt
- a marriage or civil partnership between the donor and the attorney is dissolved or annulled
- the attorney lacks the mental capacity to make decisions
Also, the Court of Protection can cancel an LPA if an attorney isn’t acting in a person’s best interests and is authorising excessive “gifts” to themselves or others.
Thinking about what might happen if you were not able to make decisions about your care and financial affairs is difficult. However, it is well worth preparing for this eventuality as it will make the situation much smoother if it should be needed in the future. You will also have the peace of mind that comes from knowing that someone you trust will be able to take care of your affairs and make decisions in your best interests.
If you want any more advice on this feel free to get in touch with Mumby’s to have a chat regarding your current circumstances.