Powers of attorney

Whilst most people are aware they need a Will many people are still unaware of how important it is to have a Lasting Power of Attorney (LPA) in place. Whilst a Will deals with all your assets after you have died, an LPA allows you to choose who will make decisions about your personal care and your finances whilst you are still alive.

Making an LPA should be thought of as similar to an insurance policy. You hope that you will never need it, but it is there if you do.

Powers of Attorney are a group of documents that allow individuals or corporate bodies to nominate family members, loved ones or business associates to act on their behalf. There are three types of Powers of Attorney, the LPA (which replaced Enduring Powers of Attorney in 2007), a General Power of Attorney and an Ordinary Power of Attorney. Under a General or Ordinary Power of Attorney you can appoint an attorney to act on your behalf either for a specific transaction or to deal with your finances generally, however these will lapse if you lose mental capacity, making them only relevant in certain circumstances.

The more common Power of Attorney is the LPA which lets you (the donor) appoint someone (the Attorney), or more than one person, to make decisions on your behalf. It is usually used when someone is no longer able to make their own decisions, but you can give authority for it to be used before then to assist you in managing your affairs.  

Importantly the LPA needs to be signed in advance of the person losing capacity.

There are two types of LPA:

• Health & Welfare: This lets you choose someone to make decisions about things like your daily routine (e.g. what to eat and what to wear), medical care, moving into a care home and decisions about medical treatment. This LPA can only be used when you are unable to make your own decisions.

• Financial: This lets you choose someone to make decisions about money and property for you. For example, paying utility bills, collecting your benefits, selling your home and generally helping you with your money. This LPA can be used as soon as it is registered, with your permission.

You can choose to make one or both of these Powers of Attorney and we can talk through the options available to you and the paperwork involved to make sure that you get it right.  In addition, there are special considerations that need to be made if you have business interests which we can go through with you.

The old Enduring Powers of Attorney (EPA) have not been able to be created since 2007 however, if validly signed, these may still be valid.  We are happy to review these to ensure they are up to date and relevant.  If you have been named as an Attorney in an Enduring Power of Attorney and the person who made the document is, or is starting to become, unable to manage their own affairs, you will need to apply to the Office of the Public Guardian to register the document.  We are happy to assist Attorneys with this application.

You will be pleased to know that your Attorney must always act in your best interests and follow the principles of the Mental Capacity Act.

We all hope that we will not become incapacitated but should the worst happen, a well drafted Lasting Power of Attorney can save you and your family an enormous amount of stress and avoid an expensive and time consuming application to the Court of Protection.

For further information about creating a Lasting Power of Attorney or for advice on acting as an Attorney please contact Natalie Smith (TEP) on 01242 801748 or natalie@franksmithandco.com