Who would look after your affairs if you had an accident or were seriously ill?
- Who would manage your bank accounts?
- Who would pay your bills?
- Who would maintain your property and deal with a sale, if necessary?
In these circumstances, dealing with your financial affairs would become difficult, if not impossible. This is because there is no-one, legally, other than you, who has access to do this for you. Neither your spouse, close family or friends would have any automatic legal authority to deal with these matters for you, unless they have a Lasting Power of Attorney. By having a Lasting Power of Attorney, you can be sure that those you trust can manage your affairs and make decisions for you, if the worst happens.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which enables you to plan in advance and set out ahead of time what you would like to happen if you become incapable of managing your affairs in the future. In the document, you can appoint one or several “attorneys” who can make decisions on your behalf in this eventuality.
The Two Types of Lasting Power of Attorney
There are two types of Lasting Power of Attorney:-
- A property and financial affairs document – which gives your attorney authority to deal with your property and finances.
- A health and welfare document – which gives your attorney authority to make healthcare and welfare decisions for you but only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment.
When Should I Make One?
You can only make a Lasting Power of Attorney whilst you have capacity to understand the nature and scope of the document. You must choose a person to certify within the LPA document that you have the capacity to make the Lasting Power of Attorney. It is also important to discuss all these matters with family and friends, particularly those who you choose to appoint as your attorneys, whilst you are able to, so that your chosen attorneys are well aware of your wishes in the event that you do lose capacity.
Who Should I Appoint as my Attorney?
A Lasting Power of Attorney is a very important legal document and you should take care in choosing your attorney. They should be trustworthy, have the appropriate skills to look after your affairs and be able to act in your best interests.
You can appoint a sole attorney or if you appoint more than one attorney, you can appoint them to always make decisions together (a joint appointment) or you can enable them to act together or separately (a joint and several appointment) if necessary.
You can also consider appointing a replacement attorney, in case your attorney can no longer act for you or dies.
When Can Your Attorney Act?
Your attorney will only be able to act when the Lasting Power of Attorney has been signed by you and your attorney(s), certified by a person that you understand the nature and scope of the document and have not been unduly pressured into making it. It must then be registered with the Office of Public Guardian before it can be used.
The property and financial affairs Lasting Power of Attorney can be used both when you have capacity to act, as well as if you lack mental capacity to make a financial decision, should you wish it to do so.
The health and welfare Lasting Power of Attorney can only be used if you lack mental capacity to make healthcare or medical decisions yourself.
Existing Enduring Powers of Attorney
Any Enduring Power of Attorney, if validly executed and prepared before 1st October 2007, can still be used. However, Enduring Powers of Attorney only cover decisions in respect of your property and financial affairs. If you wish to give authority over your health or welfare decisions, 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 an Enduring Power of Attorney?
If you lose capacity and have not made an Lasting Power of Attorney or Enduring Power of Attorney then it may become necessary for a relative or friend to apply to the Court of Protection, where the Court will decide whether or not to appoint him or her to make decisions on your behalf.
Although the Court endeavours to appoint somebody who will act in your best interests, you could potentially have someone managing your affairs who you would not have chosen yourself. It could even be someone you don’t know and not necessarily a family member.
Applications to the Court are very time consuming and typically quite costly. It can be many months before somebody is able to access your finances. This can be a very stressful time for your family and friends who may end up spending their own money trying to pay your bills whilst waiting for a court order. To avoid this, we suggest that you put in place a Lasting Power of Attorney as soon as you can.
How We Can Help?
Have a look at our Lasting Powers of Attorney case studies.
At Four Oaks Legal Services, our team of caring professionals can guide you through the process of making and registering a Lasting Power of Attorney and advise you on the options open to you and your family to give you peace of mind.