A power of attorney is a document in which one person gives another person authority to act on their behalf and in their name.
An ordinary power of attorney is automatically revoked when the donor (the person giving the authority) becomes mentally incapacitated. Up until the 30 September 2007 Enduring Powers of Attorney were the type of power you would complete to have someone manage your financial affairs past any mental incapacity.
From the 1 October 2007 Lasting Powers of Attorney were introduced and this is the system we currently have in place.
There are two types of Lasting Powers of Attorney: one for Property and Financial Affairs and the other for Health and Welfare Matters.
So what are Lasting Powers of Attorney and how useful do we believe them to be?
Are they just for old people or people with dementia?
No! They can be useful to people of all ages. We tend to think that Lasting Powers of Attorney are only used in these circumstances but actually anyone at any age can suffer an injury or illness where their mental or physical capacity is affected meaning they require some assistance.
Some people mistakenly believe that their spouse has an automatic right to manage their affairs or make decisions about their health and welfare. This is not the case.
Banks and other institutions will insist on some kind of form of authority and it will usually be a power of attorney. We recommend that clients of all ages have a Lasting Power of Attorney in place so that somebody can deal with their affairs if they are unable to do so.
Most people believe that their next of kin will be able to make decisions for them and of course ascertaining who the next of kin is, can often be problematic, for example where you have children from a first marriage and a second spouse or partner. Conflict can arise between those who believes they have the greater right to make decisions.
Any problems could be avoided with a simple Lasting Power of Attorney in which the person to whom the decisions relate appoints someone who they feel would make the best decisions on their behalf.
What happens if I decide not to make a Lasting Power of Attorney but then subsequently become incapable of managing my affairs?
The alternative route is a deputyship application which is costly and time consuming. The average Lasting Power of Attorney takes 10 weeks to be registered with the Office of the Public Guardian.
The average deputyship takes around 6 months and the person appointed may not be who the donor would have chosen. The Court of Protection is having to make decisions in sometimes difficult family situations. They may choose the path of least resistance which could be a professional deputy!
What if someone abuses their power and misuses my Lasting Power of Attorney?
We recommend that people appoint individuals who they trust and have confidence in. At all times whilst the person has capacity then they are in control of the decision-making process.
An attorney would only step in either with the person’s consent or on behalf of the person when they lose capacity.
A good example of these two differing situations: an elderly mother can no longer face dealing with the Department of Work and Pensions and would like her son to telephone them on her behalf and deal with them. If she instructs him to do so he is acting with her consent and at her direction.
In the future the same elderly mother may lose capacity and the son may need to take a decision to sell her home in order to pay for care home fees. She can no longer make that decision therefore he stands in her shoes and makes the decision for her and makes such decisions with his mother’s best interests in mind.
There are safeguards in place with the Office of the Public Guardian and the Court of Protection who are able to receive complaints or concerns on behalf of people and will act and investigate accordingly.
We think that a Lasting Power of Attorney is an invaluable document which we recommend to all clients.
Getting your Lasting Power of Attorney drawn up professionally ensures it is properly executed and valid and also means you get professional advice and up to date information. Please contact Esther Janalli-Brown on 01306 884432 or email email@example.com for more information.
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