What is a lasting power of attorney?

A legal document that allows you to choose someone now that you trust to make decisions on your behalf at a time in the future when either you don’t want to make those decisions or you lack the capacity to make them yourself.

The person you choose is called your ‘Attorney’ you are known as the ‘Donor’

There are two types of lasting power of attorney

  1. Property and financial affairs
    It would allow your attorney to deal with your financial affairs, for example:

    1. Sign cheques on your behalf
    2. Withdraw or pay money into your bank building society account
    3. Pay your bills for you
    4. Collect your pension or other benefits
    5. Deal with selling your property if you’ve moved into residential care
  2. Health and care decisions
    It would allow your attorney to make decisions on your behalf for example of the following:

    1. What medical treatment you receive
    2. How you are cared for eg at home or in a residential care home
    3. Whether you have life sustaining treatment

Why do I need a lasting power of attorney?

Your next of kin is not automatically entitled to run your affairs or make decisions for you if you are unable to do so. No one has any right to deal with your assets or make medical decisions unless you have given them prior authority. This includes your spouse and your children.

If you do not have a lasting power of attorney in place and you lose capacity to deal with your own affairs then it would be necessary for someone to apply to the Court of Protection for a deputyship order.

It can take in the region of a year to obtain a court order, which can cause difficulties for your family if decisions need to be made or if they need to access finances. Medical assessments have to be submitted to the court and the person appointed by the court may need to submit an annual report. In addition, the person appointed by the court may not be the person that you would have chosen. Problems can also arise if your family cannot agree who to appoint.

Who should have a lasting power of attorney?

Everyone should consider making a lasting power of attorney. It is something that must be set up while you still have mental capacity. Once mental capacity has been lost you cannot sign a lasting power of attorney. A loss of mental capacity is not always to do with old age or a condition like dementia. It could be because of an accident, illness or stroke. A lasting power of attorney is therefore not something that should be seen as just for the elderly.

It is perhaps obvious to assume than an older couple might want to set up so that their children can take care of them in old age. However, what about a younger couple with children or business to run, for example? If something, happened to the main breadwinner of the family who would manage their finances?

What is involved?

Initially you would need to decide who you want to be or attorney. You can appoint up to four people to act as attorneys and you may consider appointing a replacement attorney if your first choice is unable to act for you.

Both you and your attorney must sign the documents confirm that you are happy with the appointment. An independent certificate provider must also sign to certify that you have capacity to make the decision and that you have not been unduly influenced by anyone. This could be your solicitor.

Your lasting powers of attorney must then be registered by the office of the Public Guardian before they can be used. The registration process will normally take up to 25 weeks. Until the document is registered it cannot be acted on.

We would then keep the original document to give your attorneys when you feel is appropriate or for such time that you have been deemed by two medical practitioners to be mentally incapable.

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