What is Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document. It allows you to appoint someone that you trust as an 'attorney' to make decisions on your behalf. Attorneys can make decisions for you when you no longer wish to or when you lack the mental capacity to do so. A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian.
What are the benefits of a Lasting Power of Attorney?
A Lasting Power of Attorney can help you plan how your health, wellbeing and financial affairs will be looked after. It allows you to decide amongst other things:
the decisions you want to be made on your behalf if you lose capacity to make them yourself
the people you want to make these decisions
Why is having a Lasting Power of Attorney a safe way of maintaining control over decisions made for you?
- it has to be registered with the Office of the Public Guardian before it can be used
- you can nominate people, not your Attorney/s, who will be told about your Lasting Power of Attorney when it is registered. They will then be able to raise any concerns on your behalf, should they have any, about the suitability of your Attorney/s to act for you.
- the people you choose to be your Attorney/s must follow the Code of Practice of the Mental Capacity Act 2005 and act in your best interests
Are there different types of Lasting Power of Attorney?
Yes. There are two different types of Lasting Power of Attorney: Health and Welfare Lasting Power of Attorney and Property and Financial Affairs Lasting Power of Attorney
Health and Welfare Lasting Power of Attorney
A Health and Welfare Lasting Power of Attorney allows you to choose one or more people to make decisions for things such as medical treatment and decision about your care needs.
Unlike the Property and Affairs Power of Attorney, A Health and Welfare Lasting Power of Attorney can only be used if you lack the ability to make decisions for yourself.
Property and Financial Affairs Lasting Power of Attorney
A Property and Financial Affairs Lasting Power of Attorney lets you choose one or more people to make property and financial affairs decisions for you. This could include decisions about paying bills or investing money for you, up to and including selling your home. You can however put restrictions in place so as your Attorney/s cannot make decisions for you regarding some of your property and finances.
This Power of Attorney, once registered, can be used by the Attorney at any time, unless you stipulate that you only want it to be used once you lose the mental capacity to make these decisions for yourself.
What is an Enduring Power of Attorney?
Before October 2007, people could grant an Enduring Power of Attorney so a trusted person could act for them if they could no longer manage their finances.
Whilst these documents can no longer be created, provided both the Donor and the Attorney/s signed the document prior to the 1st October 2007, the document is still perfectly legal, and can still be used and registered without the need for creating a new Lasting Power of Attorney document.
An Enduring Power of Attorney can be used while you still have mental capacity, provided you consent to its use.
If you start to lose the mental capacity to manage your finances, your attorney/s are under a duty to register your Enduring Power of Attorney with the Office of the Public Guardian.
While the registration is being processed, your attorney/s can use your finances for essentials on your behalf such as paying for food or payment of regular bills. This is however all they can do, and any other transactions have to wait until after the registration process is completed.
Why might I consider making a Lasting Power of Attorney?
The reasons why a person may wish to make a Lasting Power of Attorney are of course endless, but include the following:
"I still have mental capacity, but have been diagnosed with a degenerative mental condition such as Dementia"
"There is a possibility that I will be placed in a care home and I will not be able to attend to my finances"
"I run my own business and if I were to lose capacity due to an accident and could not run my business, I would want to have someone appointed to step into my place to keep the business going"
Written by David Merrills- Solicitor
If you need more information on appointing Power of Attorney call your local team today on 0800 298 9690 or visit www.hattonslaw.com