Which power of attorney?

Which power of Attorneys are there, from time to time clients of Woodward Financials approach us with the need to appoint someone to look after your affairs. If for whatever reason, you are unable to do so yourself. Perhaps you are going abroad, and things will need to be looked after while you are away or you are concerned about illness or mental capacity.

Your spouse, partner or next of kin does not automatically have legal authority to deal with your financial or personal affairs which is why a power of Attorney can be so useful.

If you have a power of Attorney and at some point in the future you suddenly become ill or suffer an unexpected accident, your Attorney will be able to step in and look after everything until you recover. If you lose mental capacity, it would be too late to appoint an Attorney after that time.

After mental capacity has been lost, the Court of Protection may need to be involved in making decisions on your behalf unless there is a Lasting Power of Attorney in place or an older style known as an Enduring power Attorney.

In this way a Lasting Power of Attorney can significantly ease the administrative burden on family members especially in the event of loss of mental capacity.

General Power of Attorney.

You can grant a general power of Attorney but if you lose mental capacity the General Power will be automatically revoked and your Attorneys will no longer be able to act for you.

Lasting powers of Attorney.

Unlike a General Power of Attorney, a Lasting power of Attorney will not be revoked if you lose mental capacity and there will be no need to apply to the Court of Protection.

Your Attorney can take a limited role, such as paying bills or collecting any payments. Alternatively, you can give them the power to buy and sell property, operate your bank account, deal with your tax affairs, or even make medical or care decisions on your behalf.

Your Attorney can only use your LPA if it has been registered with the Office of the Public Guardian. An LPA is not available for use unless it has been registered.

The registration of an LPA usually takes several weeks after the application has been submitted to the office of the Public Guardian.

There are two different types of lasting powers of Attorney.

Property and affairs LPA.

Health and welfare LPA.

You can make either or both types of LPAs if you like you can appoint different Attorneys under each type of power.

Who shall I appoint as my Attorneys?

You can appoint anyone over the age of 18. A person who is bankrupt cannot be an Attorney. It is important that you have complete trust in your Attorney and confident that they will make the right decisions on your behalf.

Below are some of the decisions that your Attorney can make.

Property and financial affairs.

With this type of LPA your Attorney would normally be able to make decisions such as authorising day to day expenditure, dealing with your bank accounts, dealing with the sale of your house, dommunicating with insurance and utility companies, instructing your solicitor, accountant or financial adviser.

Health and welfare LPA.

With this type of LPA, your Attorney can be given the power to make decisions relating to, what medical treatments you should or should not have? What type of healthcare you should receive, whether you should continue to live in your own home or move into a residential care home> How you should be dressed and looked after? What diet you should have? What your daily routine would consist of.

These decisions will only be made for you if you are unable to make them yourself. Any decisions made by your Attorneys must be made in your best interests.

Can my Attorneys make gifts?

A Property and Financial Affairs LPA would allow your Attorneys to make small gifts to people who were related or connected to you on special occasions, such as birthdays or weddings, or on occasions which are considered customary within your family.  Reasonable gifts can also be made to charities that you have donated to in the past. Large gifts of money or assets such as your property, can only be made with the consent of the Court of Protection.

Should the powers of my Attorneys be restricted?

You can include restrictions in the LPAs so that your Attorneys are limited in the steps they can take. Alternatively with a property and financial affairs LPA you can specify that your Attorneys can only act if you become mentally incapable.

When can my Attorneys make decisions on my behalf?

With a property and financial affairs LPA, your Attorneys can act immediately after it has been registered at the Office of the Public Guardian, if you wish for them to do so.

Alternatively you can specify that you only wish for them to act if you have lost capacity. Under a health and welfare LPA your Attorneys only have authority if the LPA is registered and you become mentally incapable.

Does the LPA have to be signed by anyone else?

You must select a person to complete the part of the LPA form confirming that you understand the document and that you are not under any pressure to grant the power. This person is called a Certificate Provider. This can be someone who you have known personally for at least two years or someone who has the relevant skills and expertise such as a doctor or solicitor.

Does anyone need to be notified of the LPA?

There is no legal requirement to notify anybody but you can choose to notify somebody or a number of people if you wish to do so. Any notified person can object to the registration of the LPA With the office of the Public Guardian and there are certain prescribed grounds for lodging an objection.

Registration of the LPA court fees, exemptions and remissions.

When do you and your Attorneys register the LPA the OPG will charge a registration fee. In certain cases, there may be an exemption/ remission applicable (usually where the donor is in receipt of means tested benefits).

Can I still make decisions for myself after my LPA is registered?

Yes, you can still make your own decisions. Your Attorney can act for you if it is convenient for you but if you disagree with the steps taken by your Attorney and if you still have the mental capacity to do so, you can revoke the LPA. LPAs can be revoked by notifying the office of the Public Guardian.

What happens if I do not make an LPA?

If you become incapable of managing your own affairs and you don’t have an LPA someone will need to apply to the Court of Protection for a “Deputy” to be appointed who will then act on your behalf. It is usually a close relative who makes the application. Unfortunately the procedure can take several months and can be quite expensive.

After a Deputy has been appointed the Court of Protection directs how the Deputy should act. Deputyship should be avoided if at all possible because of the cost and the delays.

In respect of Health and Welfare, the Court of Protection may not appoint a Deputy because of the nature of the decisions to be made and in many cases a Care Manager will be appointed to make decisions in your best interests.

What is a living Will?

A living Will is a document in which you indicate your views and decisions regarding medical treatment while you are still capable of making and communicating those decisions. A living will can either be an advance decision or an advance statement. An Advanced Decision is a decision to refuse medical treatment. An Advance Statement contains other decisions about how you would like to be treated. Only an Advance Decision is legally binding, An Advance Statement should be taken into account when deciding what is in your best interests. This is a sensitive and complex area of law. There is also an interaction between a Living Will and a Health and Welfare LPA.

The content above is for information only and we strongly advise that you seek legal advice. Being Independent financial advisors, we always act in our clients best interests, we are more than happy to recommend suitable legal professionals on request.

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