Lasting Powers of Attorney - Q&A
Nicola Finbow, Head of the Private Client team at Clough & Willis answers your questions on Lasting Powers of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a document which enables you to appoint one or more person you know and trust to act as your attorney(s) to take control of, or assist you with, your financial or personal welfare decisions. This is useful where you are unable to manage your own affairs, whether temporarily or permanently, due to illness, physical impairment or mental incapacity. It allows your Attorneys to make decisions on your behalf, including if in the future you were to lack mental capacity to make decisions for yourself.
There are two types of Lasting Powers of Attorney, one relating to property and financial affairs and the other relating to health and welfare decisions. You cannot combine the two documents. You can choose to put in place one or both documents.
A Lasting Power of Attorney for Health and Welfare gives your attorney the authority to make decisions with regard to life sustaining treatment, daily diet, routine, where you might reside or the decision to accept or decline particular medical treatments. A Lasting Power of Attorney for Health and Welfare can only be used when you lack the mental capacity to make decisions for yourself.
A Lasting Power of Attorney for Property and Affairs allows your Attorneys to decide how your property and financial affairs are managed. The Lasting Power of Attorney will allow your attorneys deal with your finances, pay your bills, make decisions about matters such as opening, closing and managing bank/building society accounts, claiming, receiving and using your benefits, pensions and allowances and even assist in selling your house if required. A Lasting Power of Attorney for Property and Affairs can be used both while you have mental capacity and if you were to lose mental capacity in the future.
Who can I appoint as my attorney(s)?
You can choose members of your family, friends or a professional person such as a solicitor or accountant or indeed a combination of the two. However, professional attorneys will charge for their services. Your attorneys should be people who you trust and who have sufficient skills to make decisions on your behalf.
If you are appointing two or more Attorneys, you can authorise them to act either jointly (meaning they must both act together and cannot act individually); jointly and severally (meaning they can act together or individually) or jointly in some matters and jointly and severally in other matters.
If you appoint your Attorneys to act jointly, and one of the Attorneys dies, becomes bankrupt or becomes mentally incapable, the whole Power of Attorney will be terminated and a new document will need to be put in place. If you appoint your Attorneys to act jointly and severally and one of the Attorneys dies, becomes bankrupt or mentally incapable, the Lasting Power of Attorney will continue to act on their own as long as they are capable of doing so.
Why should I make a Lasting Power of Attorney if I am fit and well?
A Lasting Power of Attorney can only be created if you have sufficient mental capacity to understand what it is that you are signing and the authority you are granting under it. Each Lasting power of Attorney has be to countersigned by a “Certificate Provider”, who is certifying the document to confirm that you have sufficient capacity and understanding to make the document and also that you are not being put under any pressure to get it signed.
There are only certain people who can qualify to act as a Certificate Provider.
If you do not have sufficient capacity to proceed with the preparation of a Lasting Power of Attorney, someone would have to make an application to the Court of Protection be appointed as a “Deputy”. This court order would then allow the appointed Deputy to make decisions on your behalf, subject to the terms of the court order and the supervision of the court.
An application to the Court of Protection can be costly and time consuming. Annual supervision and insurance bond costs will also apply for the length of time that the court order is in place.
If you need further information about Lasting Powers of Attorney or any other Private Client matter, contact Nicola for a free, no obligation interview on 0161 7645266 or via email Nicola.finbow@clough-willis.co.uk
