What is a Power of Attorney?
A Power of Attorney is a document which allows you to appoint someone to assist you with your affairs and there are several different types of Power of Attorney. Our specialist power of attorney solicitors can provide you with expert advice throughout the process.
General Power of Attorney
This is normally a short document which often just gives your attorney the power to deal with a particular matter on your behalf. It could, for example, be limited to dealing with the sale of a specific property for you. Once that particular task is completed the attorney’s power would end. Alternatively, it might allow them to deal with all of your financial affairs but only for a limited time, for example if you were taking a trip abroad and they were to deal with things whilst you are away.
A general power of attorney only lasts for 12 months and would need to be signed again if you wanted your attorney to continue acting after the expiry of that time period. A general power of attorney also ceases immediately if the person who has granted the power loses capacity.
Lasting Powers of Attorney
There are two types of Lasting Power of Attorney, one which allows your attorneys to deal with your finances, and a separate power that allows them to make welfare decisions on your behalf.
Property and Financial Affairs
A Lasting Power of Attorney for Property and Financial Affairs gives your attorneys the power to deal with your financial matters such as managing your bank accounts, paying your bills, or even selling your house.
You can authorise your attorneys to use the financial Lasting Power of Attorney whenever you choose, but they will also be able to continue acting for you if you lose capacity and become unable to deal with your own finances.
Health and Welfare
A Lasting Power of Attorney for Health and Welfare may only be used by your attorneys if you have lost capacity. Therefore, if you are able to make a medical decision for yourself then it will always be your decision. However, if you become unable to make those choices then your attorneys could step in and arrange care for you.
Why is it important to have a Lasting Power of Attorney?
If you become unable to deal with your affairs yourself and you do not have a Lasting Power of Attorney in place then it can be very problematic for your family. Once you lose capacity and no longer understand the purpose of having a power of attorney then you will not be able to make one. This can lead to a situation where no one can access your bank accounts and so it is not possible to deal with things like paying for your care.
Many people assume that if they are married their spouse will automatically be able to make decisions for them but this is not the case. Without a registered Lasting Power of Attorney your spouse will not be able to access your accounts and even accounts held in joint names could be frozen by your bank if one of you does not have capacity.
How do you make Lasting Powers of Attorney?
Lasting Powers of Attorney are made using standard forms produced by the Office of the Public Guardian. Whilst on the face of it the forms often appear straightforward, careful consideration must be given to things such as how your attorneys are appointed if there is more than one. Sometimes if your attorneys are appointed to act jointly and one of them becomes unable to act then it could invalidate the whole Power of Attorney. It is therefore important to take legal advice to ensure that the documents operate as you intend and provide you with the proper protection.
Once the forms are prepared, they must be signed in a particular order. The person making the power of attorney must sign first. The document must then be signed by the certificate provider. Normally the certificate provider is a professional person signing to confirm that the person making the power of attorney has capacity and understands the documents. After this the attorneys must sign to confirm they agree to act. The signatures must occur in the correct order otherwise the documents will not be valid.
The power of attorney must then be registered with the Office of the Public Guardian before it can be used and this can be a lengthy process taking up to 20 weeks. It is therefore important to think about making Lasting Powers of Attorney in good time so that the documents are ready to be used when you need them.
Enduring Powers of Attorney
Enduring Powers of Attorney can no longer be made but those documents signed before 1 October 2007, when they were discontinued, are still valid and can be used. These documents only allow your attorneys to deal with financial matters so you would still need a Health and Welfare Lasting Power of Attorney if you wish to appoint someone to deal with your medical care. Enduring Powers of Attorney do not have to be registered in order to be used but once the person who made the Enduring Power of Attorney loses capacity then the attorneys do have an obligation to register the document with the Office of the Public Guardian.
Our solicitors at Hepburn Delaney are specialists in making and registering Powers of Attorney and can advise and support you throughout the process.
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