A Lasting Power of Attorney is a legal document by which you, the Donor, give authority to others, the Attorneys to act for you and make decisions on your behalf. There are two types, Property and Financial Affairs and Health and Welfare.
Decisions with regard to your Property and Financial Affairs can be made by your Attorneys if you have mental capacity, but only with your consent. This could also be because of a physical incapacity due to an accident or illness and you are unable to leave your house or you may be in hospital.
Property and Financial Affairs covers matters such as paying your bills, buying and selling property and also managing your bank accounts and investments.
Decisions with regard to your Health and Welfare can only be made by your Attorneys if you have lost mental capacity and are unable to make your own decisions.
Health and Welfare covers decisions in relation your care for example i.e. what type of care and where this care is given and how you are looked after on a day to day basis. It also includes a clause with regard to life sustaining treatment. You can give your Attorneys the authority to give or refuse consent to life sustaining treatment on your behalf, if you are unable to give this consent yourself.
Anyone over the age of 18 who has mental capacity can be your attorney. However, you must choose your Attorneys carefully as the authority granted to them can be far reaching. You can appoint more than one Attorney and it is recommended you do so. You can also specify how your Attorneys should act for you. You can appoint replacement Attorneys who would step in should your original Attorneys be unable to act for you.
Lasting Powers of Attorney must be registered with the Office of the Public Guardian before they can be used.
Lasting Powers of Attorney MUST be put in place and registered while you have the mental capacity to do so. All too often we are approached by family members of the Donor advising they wish to put in place Lasting Powers of Attorney when unfortunately it is clearly too late to do so.
I have recently had dealings with clients who did not have registered Lasting Powers of Attorney in place and the problems caused as a result are detailed below.
A client had lost capacity and held a joint account with their spouse. The clients Bank was aware that the client had lost capacity so in order to protect them, the joint Bank account was frozen. This meant that the accounts were inaccessible to both parties and as such bills could not be paid, which of course caused major problems.
I have also recently had another matter where a clients owned a property in joint names and one party had lost mental capacity. The other joint owner wanted to sell the property and so they put the property on the market. After offers were received for the property and the process progressed it became clear that the property could not in fact be sold as one of the owners didn’t have mental capacity and could not therefore sign the relevant paperwork. Clearly, this was a shock and surprise to the client trying to sell the property and resulted in untold problems and stress at an already stressful time.
Both these scenarios could have been avoided simply by putting in place and registering Lasting Powers of Attorney.
The only alternative in this situation would be to make an application to the Court of Protection for a Deputyship Order which is a costly and lengthy process taking up to 12 months to complete. This is clearly not a viable alternative.
The Lasting Power of Attorney document is a lengthy and comprehensive document and if not completed correctly, it will be rejected at the registration stage by the Office of the Public Guardian.
It is important therefore that you seek professional advice in relation to your Lasting Powers of Attorney to avoid any unnecessary delays.
To discuss putting your Lasting Powers of Attorney in place and for more information please click here or email at lawyers@waldrons.co.uk or call on 01384 811811 and we will be happy to help.
