Why a lasting power of attorney matters

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Written by: Suzanne McCulloch, Solicitor at IBB Solicitors.
28/09/2017
As registrations for Lasting Power of Attorneys rise, who would manage your affairs if you could not?

While many people are aware that they should keep their Will up to date, few consider how their personal business and medical affairs would be managed if they become unable to do so themselves. Like a Will, the arrangements in the event of incapacity should be made when you are well and stored until needed.

A Lasting Power of Attorney is a legal document by which you appoint people you trust to make decisions on your behalf should you become unable to do so yourself in the future. These people are referred to as your Attorneys.

There are two different types of Lasting Power of Attorney; Property & Financial Affairs and Health & Welfare .

A Property and Financial Affairs Lasting Power of Attorney allows your attorneys to make decisions about and administer your finances including paying bills, investing your money, selling your home and collecting your income, pensions or benefits. Your Attorneys can also use a Financial Adviser to assist and advise in managing your finances and, indeed, if your house has to sold to pay for care fees, a Financial Adviser can be asked by your Attorneys to recommend investments for the sale proceeds. If you wish you can restrict your attorney’s powers or place conditions on what they can do.

A Health and Welfare Lasting Power of Attorney allows your attorneys to make decisions about your personal welfare (including living arrangements) and health care on your behalf but only if you lack the mental capacity to do so yourself. If you wish, this could extend to giving or refusing consent to life sustaining treatment.

Once it has been signed by all the parties, a Lasting Power of Attorney cannot be used until it has been registered with the Office of the Public Guardian. It is possible to do this immediately so that your Lasting Power of Attorney can be used as soon as a need arises. In the meantime, you can still control your own affairs without interference. The appointment of the attorney simply means that there is someone to assist if you cannot cope.

There are various safeguards that have been built into Lasting Powers of Attorney.
• The Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used.
• You must choose someone to provide a certificate confirming that you understand the purpose of the Lasting Power of Attorney and the scope of its powers
• You must name persons to be notified before it is registered
• Specific people (including you) are given the right to object to the registration
• Under the Mental Capacity Act 2005, your attorneys must act in your best interests, consider your past and present wishes and keep all your money separate from theirs.
• Your Attorneys cannot use your money to make gifts to themselves or others.
• You can appoint more than one Attorney and they can be appointed jointly so that that must agree all decisions. If you don’t require this added protection you can appoint your Attorneys to act joint and severally so that can act on their own if they wish.

If you don’t make a Lasting Power of Attorney and become unable to make decisions for yourself, it can result in serious financial, legal and emotional problems for your family at what is already a difficult time. Your finances could be frozen until the Court of Protection appoints a deputy. You would have no control over who was appointed and family and friends do not automatically have the right to take over your affairs.

It may be that your Lasting Power of Attorney will never be used but you will have peace of mind that, if you become unable to manage your affairs, you have chosen who should look after such matters on your behalf until your death.

 

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