Lasting Powers of Attorney
What is a Lasting Power of Attorney?
We still refer to these as new! Couldn't tell you why as they have been around for ages!! Most people have now heard of lasting powers of attorney.
However there is still some confusion about what they are and what they do though.
There are two types of lasting powers.
property and affairs lasting power
health and welfare lasting power
The property and affairs lasting power of attorney does what it says on the tin. It lets people you know and trust help manage your financial affairs. This is not just when you lack capacity but from the moment the power is registered with the Office of the Public Guardian.
The health and welfare lasting power of attorney is a little more complicated in that it allows people you know and trust to make decisions in relation to your health and welfare needs but only from the moment you lack capacity to make that particular decision. It also allows you to choose whether you wish your attorneys to be able to make decisions about life sustaining treatment.
Whether you choose to prepare one or both you can have as many attorneys as you wish, choose replacement attorneys if your first choice cannot act, impose restrictions and conditions on them if you have particular things you do or do not want them to do. However be careful in adding restrictions and conditions as you need to make sure that the Court are not going to consider them incompatible to the power.
With a lasting power of attorney you need to have a certificate provider to confirm that you have capacity to make the power and to confirm you are not being influenced into doing so. That can be a professional with the relevant experience or someone who has known you for more than two years.
Powers of attorney are not just useful for daily life, paying bills and having a second pair of ears for medical issues they are also really useful for business owners.
Having a property and affairs lasting power of attorney means that in the event a business owner becomes incapable of managing their business their attorneys can step in and act on the behalf. This will ensure that a business can continue, staff get paid and contracts can be fulfilled whilst the business owner gets back on their feet.
We believe these documents are vitally important for everyone over the age of eighteen. Whilst we hope the worst will never happen it should still be planned for. Use a lasting power of attorney as insurance for the what if and make sure your family can concentrate on you in the event of incapacity rather than worrying about the other stuff!
It is important you take advice in relation to preparing these documents. We are only too happy to help.
Frequently Asked Questions
What are the types of Lasting Powers of Attorney (LPAs)?
A. The are two types of LPAs. The first is called a property and affairs lasting power of attorney. The second is called a health and welfare lasting power of attorney. They do two different things. The property and affairs LPA allows your chosen attorneys to make decisions in relation to your financial affairs, from paying your milkman up to selling and purchasing properties. The health and welfare LPA allows your chosen attorneys to make decision in relation to your health and wellbeing, from discussing matters with your GP up to (if you grant power) to making decisions about treatment that could keep you alive.
What happens if you don't have Lasting Powers of Attorney?
A. If you do not have a lasting power no-one has authority to make decisions in relation to your financial affairs or your health and welfare. The law does not provide an automatic default if something happens to you. With health and welfare decisions a best interest meeting will need to take place to thrash through any decision that needs to be made to work out what is in your best interest. With financial matters things will just grind to a halt. Your spouse / partner cannot make decisions for your. Third party mandates cease and joint accounts will be frozen.
A. Some people do not think these are necessary but at Argo we think these are vital. These documents provide you with a voice when you are not able to speak or make decisions yourself. They allow you to appoint people you know and trust to make decisions about what is in your best interests rather than strangers. They will let your attorneys discuss your health situations, they allow your attorneys to be the decision maker in relation to your care, housing and support needs. They also allow your attorneys to make the decision about whether you receive treatment or not.
Do I need a Health & Welfare Lasting Power of Attorney?
Who can witness my Lasting Power of Attorney?
A. There are very strict rules about who can witness your lasting powers of attorney. To make life really easy we adopt a strategy at Argo. We say that no-one mentioned in the LPA should witness another person's signature and no family member should witness a signature. We would prefer someone completely independent to act as a witness.
Can an Attorney take your money?
A. The easy answer is No. Your appointed attorney cannot take your money to use for themselves. They are there to support and enable you not to take your power or money away. You can also state in your LPA that you wish accounts to be prepared and independently checked if you wish. Any decision they make in relation to spending has to be in your best interest. They need to keep records of spending as the Court of Protection can ask to see evidence of what they have been doing. They need to keep receipts and be able to explain why they took decisions they did. In the event that something does go wrong the Court of Protection will instruct the Office of the Public Guardian to investigate the actions of the attorney. If found to have acted inappropriately the Court can remove the attorneys powers and the attorney can be prosecuted for their behaviour. This is why your choice of attorney is so important.