Powers of attorney (POA)
The importance of having a power of attorney in place, at any stage of your life, cannot be stressed enough. While we all hope that we will never have to use it, it is a comforting “insurance” policy to have in place so that you know who will deal with your affairs if you are no longer able to do so yourself.
What is a power of attorney?
A power of attorney is a legal document which allows someone (the attorney)to act on behalf of another (the donor) and make decisions for them regarding their finances, property, health and/or care if they are no longer able to make those decisions themselves. It gives the attorney or attorneys the legal authority to deal with local councils and/or banks.
What does a power of attorney solicitor do?
- Setting up a general/ordinary or lasting Power of attorney.
- Advising on the best options for your situation regarding finances, property, health and welfare.
- Applying to the Court of Protection for Deputyship when someone lacks the mental capacity to execute a power of attorney.
- Revoking a power of attorney or discharging a deputyship.
- Acting as your attorney
General power of attorney
A general power of attorney (sometimes known as ‘Ordinary Power of Attorney) can be drawn up to help you manage a relative’s affairs for a short period of time – perhaps whilst they are abroad or in hospital. A general power of attorney can only be used if the person making the power (the donor) has mental capacity.
General powers of attorney are often used by people who find it difficult to manage their own finances as they have reduced mobility and cannot get to the bank or post office. Assigning an attorney while you still have mental capacity allows you to receive the help you need whilst supervising the attorney’s actions. You can limit the amount of power given to the attorney so that they only deal with your bank account and not your property, for example.
Lasting Power of Attorney (LPA)
Since October 2007, the only way to ensure that your family can deal with your assets should you lose mental capacity is through executing a Lasting Power of Attorney (LPA). A person is considered to not have the mental capacity to make their own decisions if they are unable to understand or retain information given to them and communicate their wishes.
There are two different types of LPA; one which deals with property and financial affairs and one which deals with personal welfare.
Property and financial affairs LPA: This type of LPA allows your attorney to make decisions regarding your finances and property, such as paying bills, collecting a pension or selling your home.
Health and welfare LPA: This type of LPA allows your attorney to make decisions about your health and wellbeing, such as choosing the type of medical care you receive, life-sustaining treatment or moving you into a care home.
The person making the LPA (the donor) can choose whether they wish to make either or both types of LPA.
It is vital that anybody looking to create an LPA, in either form, seek expert legal advice before doing so. While many people might consider the task of creating an LPA too time consuming and expensive, it would be wise to think seriously about the security the power might provide you with. Our private client solicitors can assist with the application to ensure it is executed efficiently and correctly.
If you or a loved one loses capacity and a power of attorney is not in place, an application to the Court will need to be made for someone to be appointed as a deputy.
Can a solicitor act as a power of attorney?
Yes, a solicitor can be appointed as your attorney. The only requirements for your attorney are that they are 18 years old or over and have the mental capacity to make decisions for you. In some cases, individuals who are bankrupt cannot act as an attorney. You can alsochoose more than one attorney. Usually, people choose a family member or friend who they trust to act as their attorney, but if that is not possible, then a power of attorney solicitor can step in to fill the role.
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