Lasting
Powers of attorney.
Everyone
knows that you should write a will to make sure your affairs are dealt with as
you would wish when you die, but what happens if you are unable to deal with
your affairs during your lifetime? This
could be because of an accident or illness, or perhaps as a result of failing
mental capacity. Everybody should
consider a Power of Attorney because nobody automatically has the right to act
for you – if you leave it too late, the alternative is for somebody to make an
application to court which can be an expensive and lengthy process. A Power of
Attorney can be very useful to ensure that your spouse or other family member
has the legal authority to make decisions for you, subject to any restrictions
you have specified, and within guidelines that you have set out.
Powers
of Attorney
If
you simply want to give another person the legal authority to take action in
connection with your finances, you can set up an Ordinary Power of
Attorney. However, an Ordinary Power of
Attorney only remains valid whilst the donor still has the mental capacity to
make their own decisions about their finances.
Although legally valid you may encounter difficulties with financial
institutions in recognising your attorney’s authority.
A
better alternative is to set up a Lasting Power of Attorney (LPA) which
continues to be valid even if you are no longer able to make your own
decisions. You can make a LPA (Property
and Financial Affairs) which covers decisions such as paying your bills,
investing your savings or perhaps selling your property.
You
can also give someone the authority to make decisions about your personal
welfare, such as where you should live, or whether you should consent to
medical treatment. These kind of
decisions are covered by a LPA (Health & Welfare), but your attorney can
only make these kind of decisions when you cannot make them yourself.
Under
an LPA you may appoint more than one attorney to act together, together and
independently, or together in respect of some matters and together and independently
in respect of others. If attorneys have to act together, then the LPA fails if
any of the attorneys die or lose capacity (and also in some other
circumstances). If they can act together or independently then the LPA will
continue even if an attorney should die, etc. A replacement attorney can be
nominated. You may grant general or limited authority. If general power is
granted then the attorneys may manage all your property and affairs. If any
restrictions or conditions are to apply then they must be clearly stated. Your
attorney is under a duty to consult with you as far as possible, and to always
act in your best interests.
Your
solicitor should be involved in the initial process of advising you about LPA’s
and in some cases it may also be appropriate for your solicitor to be appointed
as an attorney, often with a family member or a close friend. If you would like any further advice or help
in setting up your own LPA please contact Blackhurst Swainson Goodier LLP,
solicitors in Lancaster (01524 386500) and Preston (01772 253841).
