You may have heard the term ‘power of attorney’ bouncing around, especially if you or your relatives are ageing or have specific needs which may require this. Perhaps people are advising you to go down that route but you’re not entirely sure what it entails. Don’t worry, our blog seeks to inform you on the subject.
Anybody aged 18 or over who has the mental capacity to make financial, health and welfare decisions for themselves are eligible to nominate a Lasting Power of Attorney (LPA) in the event that they can no longer look after their themselves and/or their affairs. By getting this ticked off early, you are given the peace of mind that in the event of something happening further down the line, you have someone you trust to take care of your affairs.
It’s important to note that you can nominate more than one attorney. These will be referred to as jointly or jointly and severally which means that some or all decisions are to be made together in line with what has been officially stated.
Two Types of Power of Attorney
- Property and Financial Affairs
This allows attorneys to make decisions relating to your financial affairs such as operating bank and financial accounts, paying bills, and collecting benefits and/or pensions on your behalf.
- Health and Welfare
This allows attorneys to make decisions relating to your health and welfare in terms of living accommodation, care, medical treatment along with general day-to-day things such as what you wear or eat.
However, if somebody doesn’t have the mental capacity in order to appoint a Lasting Power of Attorney, then an application will need to be made to the Court of Protection so that somebody can be granted the power to act on your behalf. This process is lengthy, intrusive, and expensive (in that it requires ongoing fee payments). This Deputyship order can result in you having somebody chosen to manage your financial affairs whom you may not have wanted to nominate yourself.
When will my lasting power of attorney come into effect?
The truth is that an LPA can kick in at any time when the donor is deemed to have lost their mental capacity to look after themselves or to make decisions related to their affairs.
The unfortunate thing that we must bear in mind, is that illness requiring an LPA can occur at any time, not always as a direct result of ageing, so an LPA may be necessary to kick in at any time. Therefore, getting it up and running as early as possible can only have the best benefits available. We see families very often that are under the sudden realisation that they need to bring in an LPA which can be costly and time-consuming.
Common scenarios or diagnoses where mental capacity is lost (meaning that you can’t make your own decisions) include; dementia, mental health problems, brain injuries and so forth.
Can a lasting power of attorney be revoked?
An LPA can be revoked under the jurisdiction of the donor, provided that they still have the mental capacity to do so. If mental capacity has been lost then this cannot happen – nor can adding an additional attorney as an LPA. There are some scenarios in which a lasting power of attorney will be revoked automatically. These include:
- Under property & financial affairs – if the donor or attorney become bankrupt.
- If the attorney dies and there are no other attorneys or the attorneys are only authorised to act together
- The attorney lacks the capacity for the LPA duty
- The attorney refuses to act by disclaiming the appointment and there are no other attorneys
- The attorney is married to the donor or is their civil partner and the marriage / civil partnership is to cease (although the LPA could have a clause stating that it is not to cease in these circumstances, however),
Do I need lasting power of attorney?
A misconception is that a lasting power of attorney is only applicable to the elderly who have lost their mental capacity through dementia. Whilst this can be the case, there are many people who decide to plan for the future in the case of an accident or illness that causes them to lose the ability to make crucial decisions, or in the fact that they can’t look after themselves.
In addition, it is not uncommon for parents with young children to make an LPA in the event that they are no longer to look after and make decisions regarding their children.
Can I do lasting power of attorney myself?
It’s common these days to find power of attorney kits frequenting the local post office or stationery shops. They’re quite low-cost and do look relatively professional. However, the problem with these DIY solutions is that the people who are filling them out are often uninformed of the complex process involved which can lead to needing to see a legal representative to clear a problem up.
In short, the answer is yes, you can. Though it always pays to get a professional on side.
Contact one of our Wills & Probate team on 02476 555 400 to see how we could help you plan for the future.