Power of Attorney
We can advise you on the preparation of powers of attorney, including Lasting Powers of Attorney which continue to operate even if you subsequently lose mental capacity. Lasting Powers of Attorney allow you to appoint someone to manage your property and financial affairs and also to make health and welfare decisions for you, if you are unable to do so yourself.
A Lasting Power of Attorney (LPA) allows you to appoint more than one attorney, and you can also appoint back-up attorneys, as replacements. This allows you great flexibility when making a power. It should be you who decides who will have the authority to act on your behalf and for complete peace of mind we recommend that you seek professional advice.
Without an LPA, no-one, not even your spouse or civil partner has the legal right to deal with your finances or make welfare decisions for you. If you, or a loved one, needs assistance with their affairs but lacks the capacity to do so, and no LPA or EPA has been signed, then the only remaining option is for someone (possibly not of your choice and it could even be the local authority) to apply to the Court of Protection for a Deputyship Order which involves greater complexity and cost than an LPA.
There are also annual fees including supervision and a security bond. The Deputy also has to submit annual accounts as well as a report to the Court and, if applicable, tax returns.
You can place restrictions on your attorneys and also note guidance so they are fully aware of your wishes.
Property and Financial Affairs (P&FA) Power of Attorney.
This power allows decisions to be made relating to your personal finances and can include such things as selling a home, dealing with bank accounts. It is particularly important with joint account holders as if a joint account holder lacks capacity and there is no power of attorney in place, the bank account can be frozen.
An LPA cannot be used unless it is registered first. Registration does not prevent your continuing to make decisions for yourself, unless of course you begin to lose capacity.
Health and Welfare Powers of Attorney
This type of power can only be used once you lose the ability to make medical and day-to-day living decisions for yourself. It enables you to appoint those you trust to make decisions regarding your care when you are no longer able, but rest assured they must only act in your best interests.
A health and welfare power of attorney can prove very useful in a number of ways, such as general day to day decisions made with the GP, liaising with adult care services regarding access to care or care services in the home, as well as regarding hospital admissions.
You can authorise your attorneys to make end of life decisions on your behalf if they are aware of your wishes. You can note guidance as to not only end of life care but also your care if you have a chronic illness.
The NHS has issued guidance to all medical practitioners to ask family members whether there is a health and welfare power in place.
Enduring Power of Attorney
If you have an existing Enduring Power of Attorney (EPA) this is still valid even though you can no longer make an EPA. It may still be perfectly adequate to cover decisions on finance and property, but it does not relate to health and welfare matters.
An EPA only needs to be registered if the person who made the power is beginning to lose the capacity to make decisions about their financial affairs or has lost the capacity to manage their affairs. This decision is for the attorneys to make and is a subjective one but if this is the case then the attorneys are under a duty to register the power. The registration process means that the person who has made the power cannot cancel the power and will not be permitted to continue to deal with their affairs by themselves.
Don’t forget if you still have the ability to understand and make decisions for yourself a power of attorney can be cancelled. It is always prudent to review your power of attorney, particularly if you have appointed only one attorney.