Lasting Powers of Attorney
What is a power of attorney?
If you are worried about getting older and/or being mentally capable of making decisions as to your welfare, you can appoint someone else to make those decisions when you feel you no longer have the capacity to do so.
Appointing someone else to make decision in regards to your finances and healthcare is known as creating a lasting power of attorney. This is a formal legal document that lets you appoint one or more people to help you make decisions or do so on your behalf.
This gives you more control over what happens to you if, for example, you have an accident or an illness and cannot make decisions at the time they need to be made.
To create a lasting power of attorney, you must:
- Be over 18; and
- Have mental capacity
You can create two types of lasting power of attorney:
1. Property and Financial Affairs
This gives an attorney the power to make decisions regarding money and property for you. This can include paying bills, selling your home and managing your bank accounts. As soon as it is registered, it can be used – with your permission.
2. Health and Welfare
This gives an attorney the power to make decisions over, for example: your healthcare, moving into a care home and life-sustaining treatment. This type of power of attorney, however, can only be used when you are no longer able to make your own decisions.
These types of power of attorney can be created individually; however, the majority of individuals create both in order to cover all bases.
Who can be my attorney?
In creating a lasting power of attorney, the attorney assumes various duties including:
- A duty of care;
- A duty to carry out the your instructions; and
- A duty to act in good faith.
Anybody can generally be an attorney, although you should obviously only nominate somebody that you trust. They will have considerable responsibility to assist in making decisions that affect you.
One individual can be appointed. This individual will have sole responsibility for making decisions on your behalf and is accountable to no other attorney. If only one individual is appointed, it is important to bear in mind that replacement attorneys may be required if this individual dies or loses their own capacity.
You can also appoint two or more attorneys jointly. This means they must make all decisions together. In this case, no attorney is able to act without informing the other(s). However, if in the event of one of the attorneys becoming incapacitated, the document fails and you would have to complete further documents and lodge a new power of attorney form.
Two or more attorneys can be appointed “jointly and severally”. In these circumstances, attorneys can act together or, providing no restriction has been created by you, independently of each other. This is more practicable but less accountable than the previous options, as if one attorney is no longer able to act, the authority continues. If you intend to place restrictions regarding decisions or differing degrees of authority, it is important to get legal advice to ensure that these documents are drafted correctly as a failure to do so could cause significant problems at a later date.
Can I end a power of attorney?
It is possible to end a power of attorney, even after it has been registered, as long as you still have mental capacity. You can also complain if you have any concerns regarding your attorney and applications can be made to the Court of Protection to resolve such issues. This, however, is a last resort as this process can be lengthy, complex and expensive.
Your lasting power of attorney will end if your attorney:
- Loses mental capacity
- Divorces you or ends your civil partnership if they’re your husband or wife.
- Is removed by the Court of Protection
- If you attorney of Property and Financial Affairs order, a lasting power of attorney may also end if your attorney becomes bankrupt or subject to a Debt Relief Order.
When you die your affairs will be looked after by your executors from that point, not your attorney.
To have a legally binding lasting power of attorney, your application must be endorsed by a certificate confirming that you were not placed under any pressure to create the document and that you understand the importance of what you are allowing attorneys to decide.
Without a lasting power of attorney, in the event that you no longer have mental capacity, family members will have to make an application to the Court of Protection if they are required to do things on your behalf. This is a complex, expensive process which required medical evidence and the Judge examining the circumstances of the case. It is far more desirable to have an appropriate lasting power of attorney duly completed and registered as early as possible.