You may have made a Will to ensure that, on your death, your estate passes to those people or causes most important to you, but what about during your lifetime?
Suppose that either very suddenly or due to a progressive illness you become unable to manage your personal affairs such as your banking, your property or organising your medical treatment or care. Who will deal with this for you? Who do you trust to deal with this? If you cannot make decisions about these matters, then someone will have to make them on your behalf and they will have to act in your best interests.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that lets you (the ‘donor’) appoint one or more people (known as the ‘attorney’) to act on your behalf should you ever be unable to deal with your affairs.
Such inability may arise as a result of Alzheimer’s disease or dementia, but equally if you suffered brain damage as a result of a stroke or a car accident.
There are two different types of Lasting Power of Attorney, one which deals with property and financial affairs and the other that deals with health and welfare matters. You can make a Lasting Power of Attorney for one or both areas depending on your needs.
Do I need to use a Solicitor to create a Lasting Power of Attorney?
A Lasting Power of Attorney is a powerful legal document that gives very strong permissions over someone’s life and wellbeing, therefore it is advisable that you seek legal help and advice from a solicitor when wanting to make a Power of Attorney to ensure that there can be no risk of abuse of the power given.
By using a solicitor you are receiving reassurance that the whole process is being carried out legally, and a solicitor will be able to help if you are unsure about the process, the family does not get on or there are complex assets, such as businesses or overseas property.
Powers of Attorney – getting them registered
There are two kinds of Power of Attorney that are commonly used today, Enduring and Lasting, and both must be registered before they will be recognised by organisations with which an Attorney might need to communicate.
The registration process differs hugely between the two kinds of document and, thankfully, has become a much more straightforward and practical process since the introduction of the Lasting Power of Attorney.
Enduring Power of Attorney
You may have made an Enduring Power of Attorney before October 2007 appointing someone to manage your financial affairs and property on your behalf should the need arise. Following the passing of the MCA 2005, a new legal document was created allowing a person to appoint someone to manage their affairs in the event that the person could no longer manage matters themselves. However EPAs are still valid, as long as your chosen Attorney is still willing and able to act on your behalf.
Lasting Power of Attorney
A Lasting Power of Attorney is similar to an EPA in that it allows you to give your authority to whoever you choose (who will be your Attorney) to make decisions on your behalf if you are not able to make them yourself. You can make separate LPAs for your financial matters and for your care and medical treatment and you can provide instructions or guidance on the LPA to help your Attorney act in accordance with your wishes. We can assist you to complete a Lasting Power of Attorney and discuss with you the range of matters that you may wish the document to cover.
By signing an LPA you are not giving up your ability to manage your own affairs. You can continue to deal with things for as long as you are able but should you need your Attorney to help you, the LPA must first be activated by registering with the Office of the Public Guardian, with which we can assist you or your Attorney.
Sadly, sometimes the chosen Attorney does not deal with matters appropriately and financial abuse occurs. Our department has experience of advising clients and concerned relatives on this issue and can assist in making applications to the Office of the Public Guardian, the office which protects people who lack capacity from abuse.
Selling a Property using a Power of Attorney or a Deputyship Order
It is important to be aware of the extent of your powers, which will be defined by the type of Power of Attorney you have, and any specific directions comprised within it.
You may, for example, be an attorney under a registered Lasting Power of Attorney (LPA). If so, you will have authority to sell the donor’s property provided there is no clause in the LPA document preventing you from doing this and also provided you are acting within the general scope of your authority as attorney.
Deputyship Orders: Why a Power of Attorney is so important
As a Firm we regularly advise our clients of the importance of a Power of Attorney and the usual response, quite understandably, is “I don’t think I am in a position to need one of those yet”.
We have recently been instructed in several cases where unfortunately, a person has lost their capacity to articulate their decisions and wishes and did not have a Power of Attorney in place: either due to not knowing of the document’s existence; or believing that they did not require the document at that time. Unfortunately, incapacity can strike without warning which can result in loved ones or friends having to consider applying for a Deputyship Order through the Court of Protection.
Get in Touch
For further information please contact our Private Client team by telephone on 0118 958 9711 or email [email protected] to arrange an appointment for you to meet with one of our solicitors at our office in Queens Road, Reading, Berkshire. Please let us know if Reading is not convenient for you as we can also arrange client appointments at your home where required to assist with your Power of Attorney.