There are a number of reasons why you might need someone to act on your behalf or make decisions for you. There are also plenty of reasons why you might need to act on someone else’s behalf, too. It could just be temporary: for example, if you’re in hospital and need help with everyday things such as making sure that bills are paid. Or you may need to make more long-term plans if, for example, you or a loved one has been diagnosed with dementia.
There are two types of power of attorney: ordinary and lasting.
1. Ordinary power of attorney
If you want to give someone full access to make decisions and take action concerning your finances while you still have mental capacity, you can set up an ordinary power of attorney.
This is a legal document giving someone else authority to act on your behalf or vice-versa. It is only valid while you still have mental capacity to make your own decisions about your finances, so that you can keep an eye on what the person making decisions for you (your attorney) is doing.
You can limit the power you give to your attorney so that they can only deal with certain assets, for example, your bank account but not your home.
2. Lasting power of attorney
A lasting power of attorney gives someone you trust the legal authority to make decisions on your behalf, if either you’re unable to in the future or you no longer wish to make decisions for yourself.
It’s important to identify the different types of Lasting power of attorney (LPA). You can apply to one or both of the below LPAs:
Property and Financial Affairs LPA
Your attorney can use this while you still have mental capacity. They can generally make decisions on things such as:
• selling your home
• paying the mortgage
• investing money
• paying bills
• arranging repairs to property.
Personal Welfare LPA
Your attorney can only use this when you no longer have mental capacity. It covers healthcare as well as personal welfare. An attorney can generally make decisions about things such as:
• where you should live
• your medical care
• what you should eat
• who you should have contact with
• what kind of social activities you should take part in.
Setting up an LPA
To register your LPA, first get the LPA forms and an information pack from the Office of the Public Guardian or download the forms or fill them out online (visit www.gov.uk/lasting-power-of-attorney). You don’t need a lawyer to help you set up an LPA but, if you prefer, a solicitor or local advice agency can help you set up and register it.
If you lose mental capacity but you signed the LPA while you still had mental capacity, the attorney can register it for you. You can ask a solicitor to help you get a certified copy of your LPA. Contact the Office of the Public Guardian for details and costs.
What happens if I no longer have capacity to make an LPA?
If there does come a time in the future when you can’t make a particular decision, and you haven’t created a valid LPA or EPA, the Court of Protection may need to become involved.
The Court of Protection can:
• decide whether someone has the mental capacity to make a decision
• make an order relating to the personal welfare or property and financial affairs of someone who lacks mental capacity
• appoint a deputy to make decisions on behalf of someone who lacks mental capacity.
Someone who wants to make decisions on your behalf can apply to the court to be appointed as deputy, a role similar to that of attorney. The court will consider whether you’ll need someone to make ongoing decisions for you, and whether the person applying is suitable for the role. The court usually does everything by post, rather than holding a hearing.
If you have an existing EPA, the attorney may apply to act as a deputy in certain circumstances. You can’t choose your deputy personally and the process of appointing one can be lengthy and costly. It’s much better to have an LPA in place.
No one knows what the future holds. Dementia affects 1 in 6 people over the age of 80 and by 2051 it is expected that 2 million people will be diagnosed with dementia. If you’re diagnosed with dementia prior to setting up an LPA, it will be very difficult to set up as you’ll be seen as lacking mental capacity. This is why it’s so important to organise a power of attorney before it’s too late.
We understand that powers of attorney can be confusing and difficult to understand. Many will have individual circumstances that need to be discussed at length before signing any important documents. This is why it’s sometimes best, and can save you money in the long run, if you use a qualified solicitor to set up a power of attorney.
Gregsons Solicitors are a local firm based in Wimbledon who offer a complete service of appointment of Attorneys you trust and registration if required, often at a fixed cost. They can answer any questions you may have and will act as quickly (or slowly) as you require.
For more information, simply click on Gregsons Solicitors’ profile page link below.
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