Power of Attorney
If someone has an accident, illness, or their health simply deteriorates with age, then they may struggle to manage issues such as their finances, property, health and welfare. To prepare for this situation, it is recommended to ‘donate’ a power of attorney (a legal document) to a close relative, friend or solicitor, so they can legally manage the finances and other important aspects of their life.
The person who takes on this role is the ‘attorney’, and the ‘donor’ can choose more than one attorney if they want to. The minimum age to be either an attorney or donor is 18 years old. A donor can change who they want as their attorney at any moment.
If someone has not yet made a power of attorney, but they are already unable to manage their own affairs because they ‘lack mental capacity’, their relatives are often concerned on how their affairs will be managed. One option is to consult with the Court of Protection who can make suitable decisions based on their information.
For this area of the law, a solicitor should be consulted to make sure the best decisions are being taken, because there are many complex aspects to navigate and a thorough understanding is crucial. For powers of attorney to be valid, the attorneys must fully understand the arrangements of the role they are taking on.
Choosing an attorney
Because nominating someone as an attorney is an important responsibility, they must be trusted, capable of managing their own finances and comfortable taking on this role. For multiple attorneys, the donor should state whether decisions can be taken individually, or whether they must be made jointly (which requires the attorneys to agree with each other).
When someone wants to make a power of attorney, their solicitor needs to know whether they have a will, what they own, how they want everything managed and details about any medical conditions that they have. The solicitor will then be able to go through the possible options based on the information provided. The main option is creating a ‘lasting power of attorney’.
Lasting power of attorney (LPA)
There are two types of LPA, which last even when the donor ‘lacks capacity’:
- Health and welfare – For this power of attorney, the attorney can make medical decisions for the donor in the future once they are incapable of deciding themselves, such as treatment or moving into a care home.
- Property and finance – For this power of attorney, the attorney can handle the donor’s finances, such as managing their bank accounts, paying their bills and selling their house.
The best way to ensure that these LPAs go to plan is to consult with a solicitor who will check that everything the donor wants is specified and in order.
An appointeeship is when the donor chooses someone to be their ‘appointee’, who will receive the donor’s pension/benefits where possible, provided there is proof of this agreement. A solicitor can help ensure that there are no legal problems with this.
There are many issues to manoeuvre for this branch of the law, so make sure a solicitor is involved. This is because as well as all the previous topics they can help with, they can provide guidance on long-term care arrangements, financial abuse and will-making if necessary.