Power of Attorney
REASSURANCE FOR ONE OF LIFE’S MOST DIFFICULT CHOICES.
If you need to make a Lasting Power of Attorney, our team will sensitively guide you through the process.
What is a Lasting Power of Attorney?
It is a legal document where you (the Donor) appoint someone (your Attorney), you know and trust to support you with decision making or to make decisions on your behalf if you are no longer able to do so. There are a number of reasons why you may need the help of an attorney it could be a temporary situation, for example you may have to spend time in hospital and need help with your day to day management such as paying bills. It may be longer term, for example if you have been diagnosed with an illness such as dementia and you may lose the capacity to make your own decisions in the future.
One of the benefits of having a Lasting Power of Attorney in place is the reassurance of knowing that in the future, if you are no longer able to make decisions for yourself, you have appointed someone that you know and trust to make those decisions for you. When an individual no longer has the capacity to make certain decisions and does not have a Lasting Power of Attorney in place it would be necessary to make an application to the court of protection to apply for a Deputyship order. The court would appoint a Deputy to manage your financial affairs on your behalf. The Deputyship process is more expensive and time consuming causing unnecessary distress at what could already be a difficult time for your family and friends.
You should not assume that in either case if you are married or in a civil partnership that your spouse will automatically be able to deal with your bank account and pensions and make decisions about your health if you lose the ability to do so as this is not the case. Without a Lasting Power of Attorney they do not have the legal authority to do so.
Lasting Power of Attorney types:
Lasting Power of Attorney for financial decisions
The Lasting Power of Attorney for financial decisions can still be used whilst you have mental capacity and you are able to give instructions to your attorneys to assist and support you with management of your affairs. If you lose mental capacity then your attorneys will continue to manage your finances always acting in your best interests. A Lasting Power of Attorney for finances includes things such as buying and selling property, investing money, paying bills and the general management of your affairs as you would have done so yourself.
Lasting Power of Attorney for health and care
This type of Lasting Power of Attorney differs from the financial version as it can only be used once you have lost capacity to make decisions relating to your health and care yourself. You will have appointed an attorney who you trust and who would know your wishes to be involved in best interest meetings and assist with decisions you are unable to such as where you should live, medical care, who you should have contact with and what kind of social activities you should take part in. You are also able to give permission for your attorneys to make decisions about life sustaining treatment.
The advantages of having Lasting Powers of Attorney for both financial decisions and health and care decisions safeguards your future and gives you peace of mind knowing that somebody of your choice will be making decisions on your behalf if you are no longer able to.
General Power of Attorney
Under a General Power of Attorney you appoint an attorney to manage your financial affairs. It can only be used whilst you have mental capacity. This document is useful if you are going away on holiday or will be going into hospital for a long time. If you lose mental capacity then the document is no longer valid.
Next steps
If you are unsure about the type you require or if you need assistance on making a power of attorney please get in touch. You can speak to us on 0800 533 5349 or reach us on email at enquiries@mogersdrewett.com
Frequently asked questions
Everyday we make decisions about our finances, health and day to day living. Mental capacity is decision specific, it is legally defined by the Mental Capacity Act (MCA) 2005, the law that protects you if you “lack mental capacity”. This might be on a temporary or permeant basis. Under Section 2 of the MCA you may lack mental capacity if you are unable to;
(a) understand the information relevant to the decision,
(b) retain that information,
(c) use or weigh that information as part of the process of making the decision, or
(d) communicate the decision (whether by talking, using sign language or any other means)
Assessing mental capacity can be very complex, you may have the capacity to make and understand decisions about your day to day living e.g. what to eat and what to wear. However, you might lack capacity in relation to more complex decisions such as finances and where to live, which may require the involvement of a suitable professional e.g. GP, social worker, solicitor.
No. It’s never too early to make arrangements. Anyone, at anytime, regardless of age, can become physically or mentally incapable as a result of an illness or accident. So if you’re aged over 18 and have the mental ability to make financial, property and medical decisions for yourself, making a Power of Attorney sooner rather than later, allows you to take control of your future.
Since October 2007 it has not been possible for a person to create an EPA. However, EPAs prepared pre October 2007 are still valid. It is important to note an EPA allows an Attorney to act in connection with property and financial decisions only and does not extend to health and welfare decisions. Therefore, you may wish to consider completing an LPA in relation to your health and welfare. If an Attorney has reason to believe that the Donor of an EPA is becoming mentally incapable of managing his or her own affairs, the Attorney needs to register the EPA with the Office of The Public Guardian.
A Will and a Lasting Power of Attorney are separate documents. A Will only takes effect after death. A Power of Attorney relates to a person’s lifetime affairs and the document ceases after death.
If an Attorney has not been appointed and you are unable to make your own decisions, the only course of action is for an application to be made to the Court of Protection to appoint a Deputy. This is considerably more expensive, time consuming and complicated. The Court of Protection decides who should be appointed as your Deputy.
We assist clients of all ages with preparing a LPA that will work for them and their individual circumstances. Allowing the client to take control of their future and appoint someone they know and trust to make decisions about their finances and/or health, in the event they are no longer able to do so.
We can provide advice and guidance about who to appoint as your Attorney and the preferences and instructions you may wish to include within the LPA document. The LPA could be invalid or the validity of the document challenged, if certain procedures have not been followed correctly.
Do you have any other questions? Please do get in touch with us on 0800 533 5349 or email at enquiries@mogersdrewett.com
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