Lasting Powers of Attorney
WHAT WOULD YOU DO IF YOU COULD NOT LOOK AFTER YOUR FINANCES YOURSELF?
- If you become incapable of managing your own financial affairs, either by reason of mental incapacity or physical infirmity, then someone has to step in and manage them for you.
- The legal way of giving someone else the power to manage your finances is called a Power of Attorney.
- There are two main types of Powers of Attorney:-
- A Lasting Power of Attorney (LPA) and an ordinary (or general) Power of Attorney.
- Lasting Powers of Attorney replaced Enduring Powers of Attorney, although any Enduring Powers of Attorney which were made before 1st October 2007 can still be used.
- A Lasting Power of Attorney is the type that is most commonly used now since it goes one step further than an ordinary Power of Attorney in that it “lasts” even if you lose “capacity” i.e. when you are no longer mentally capable of running your own affairs.
- An LPA can also be used whilst you still have capacity but you suffer from a physical problem such as a stroke or other disability which makes it difficult for you to deal with things as easily as you would like.
- It is best to have a Power of Attorney in place well before there is any likelihood of it being needed. Once prepared it does not need to be brought into force immediately but only when you wish to do so. Or, if you lose capacity in the future it will make everything a lot easier for you and your family if you have already put this in place.
WHAT IF I DO NOT HAVE A LASTING POWER OF ATTORNEY?
- If you do not have a LPA, the alternative is for someone – which may not be the person you would have chosen – to apply to the Court of Protection for the authority to manage your finances. The person appointed is called a Deputy. Court of Protection Applications are more complicated, the process can take longer and is usually more expensive than the cost of making and registering an LPA
LASTING POWERS OF ATTORNEY (HEALTH AND WELFARE)
- As well as being able to appoint someone to manage your finances it is also possible to appoint someone to make decisions on your behalf when you are no longer able to do so about matters such as medical treatment and your care. This can be done through a Health and Welfare Lasting Power of Attorney. This differs from a Property and Financial Affairs Lasting Power of Attorney in that the Property and Financial Affairs Lasting Power of Attorney can authorise your Attorneys to assist with your finances even if you are still able to make decisions for yourself but wish someone to take over your finances for some other reason such as physical infirmity. A Health and Welfare Lasting Power of Attorney only authorises your Attorneys to make decisions for you when you lack the mental capacity to do so. Decisions your Attorneys might make on your behalf might include matters such as consent to or refusal of medical treatment, where you live such as whether you are able to remain living in your own home with support or receiving nursing or residential care and other day to day issues concerning your health care and personal welfare.
- The role of an Attorney involves a great deal of responsibility and it is important that you consider carefully who you wish to appoint. You must be able to trust them to act in your best interests and therefore it is usually a member of your family or a close friend that you will wish to appoint.
LIVING WILLS AND ADVANCE DECISION
- A “Living Will” is the most commonly used term for a document which sets out your wishes in relation to medical treatment in case you do not have the medical capacity to make the decision at the appropriate time. A Living Will is not legally enforceable but would usually be taken into account by the people looking after you when making any decision concerning your treatment.
- An “Advance Decision” (previously known as an “Advance Directive”) is a legally binding document that allows you to specify the times and medical treatment that you do or do not wish to receive. Again, this only applies if you lack the capacity to make the decision at the appropriate time. However, health and social care professionals would need to be satisfied that the Advance Decision applies to the particular situation at the time. They also have to be satisfied that the person has capacity when they made it and that they fully understood the implications of their decision. In order to be legally valid it is best to have such a document drawn up by a professional person such as a Solicitor.
- We can discuss these issues with you and advise appropriately on which document meets your requirement.
For further advice or if you would like to arrange an appointment, please feel free to contact us by e-mail or telephone or by visiting our offices.