You may be married, in a civil partnership, or perhaps you’re in neither but feel you have put sufficient measures in place to secure your future. So, why would you need a power of attorney in place too? We chat to Claire Atkinson, Head of Practice for Wills, Taxes, Trusts and Probate (WTTP) at Slater and Gordon, to discuss the role of a power of attorney, the circumstances in which you may need one and how you can put one in place. 

What is a Lasting Power of Attorney and the role of an Attorney?

A Lasting Power of Attorney (LPA) is a legal document which enables a person (called ‘the Donor’) to appoint one or more people (called ‘The Attorneys’) to make decisions for them, should they become unable to do so themselves.

The role of an Attorney is to, wherever possible, help the Donor to make decisions and if they are unable to make their own decisions, then the Attorney can make the decisions for the Donor, which always must be in the Donors best interests.

There are two types of LPAs which can be made: (1) Property & Financial Affairs, which covers all property & financial matters and (2) Health & Welfare, which deals with general health & welfare, care, medication and personal issues.

What are the circumstances in which a Lasting Power of Attorney would take effect?

The Attorney can, under the Property and Financial Affairs LPA, assist the Donor with paying their bills, accessing their bank accounts, claiming benefits, and even selling their home, if required.  This LPA can be used to assist the Donor whilst they have capacity, with their consent, or if they have lost full capacity, the Attorney would then take over and fully manage the Donor’s affairs.  

Under the Health & Welfare LPA, the Attorney(s) can make decisions regarding personal issues, such as where you live, the medical treatment the Donor receives, and even decide whether or not to switch off a life support machine and/or put in place a do not resuscitate order.  Decisions can only be made by an Attorney once a Donor has lost full capacity under the Health & Welfare LPA.

What are some of the common misconceptions around Lasting Powers of Attorney – what rights do your spouse/partner/parents have without one in place?

The simple answer is that they have none!  People often think that as someone’s next of kin or spouse, that you are automatically able to make these decisions. Unfortunately, that is not the case.  In the absence of a Property & Finance LPA in place, no one (not even your spouse) can access a person’s money or manage their affairs.   

The only way around this is to apply to the Court of Protection for a Deputyship Order.  This is expensive and will most likely take years to obtain.  Also, it may not even be someone that the Donor knows, but who is appointed by the Court to act.  Often it can be a Solicitor, Local Council or Social Worker that is appointed, rather than a family member. 

Without a Health & Welfare LPA, these decisions are discussed with the family members, but the ultimate decision is made by doctors or social workers, which may go against the Donor’s wishes.  It is also extremely difficult to obtain a Health and Welfare Court of Protection Deputyship Order. 

How can you put a Lasting Power of Attorney in place –  what circumstances would it be best to consult with a solicitor? 

Everyone, no matter what age they are, should have a Power of Attorney in place. 

You can either complete the forms yourself online, with the Office of the Public Guardian, or you can speak to a Solicitor, who has vast experience in drafting these forms.  

The solicitor would provide you with advice regarding the procedure, who you would be best to appoint, and give you guidance as to certain wishes that you may want to give your Attorneys i.e. what you do or do not wish them to do on your behalf. 

Additionally, a solicitor would be able to act as the certificate provider (this is someone who signs the document to confirm that you are of sound mind and understand the LPAs fully). 

The solicitor would ensure that the LPA’s are completed correctly and thereafter registered at the Office of the Public Guardian.  It is important that no errors are made when drafting the documents, as to the procedure, that would make the documents invalid.

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