Power of Attorney

A Lasting Power of Attorney is a legal document that allows you to appoint a member of your family or a close friend to make decisions on your behalf. There are two different Powers of Attorney available – one is for Property and Financial Decisions, and one is for Health and Welfare decisions.

If you do not make Powers of Attorney whilst you have the mental capacity to do so, and you subsequently lose the ability to look after your own affairs, then the alternative is an application to the Court of Protection for the Court to appoint somebody. This can be very expensive, very time consuming and very stressful.

Making a Power of Attorney must be done whilst you are able to make decisions for yourself.

Property and Financial Affairs (“Financial”)

Your appointed attorneys can assist with decisions relating to Property and Finance. This could be making simple decisions such as paying bills up to more complex decisions such as the sale of a property. Attorneys can begin to help you with your financial affairs even whilst you have your full mental capacity, for example if you slipped in the snow and could not get to the bank, your attorneys can go for you.

Health and Welfare (“Health”)

This allows your attorneys to make decisions about your health and care such as whether to refuse or consent to certain treatments and where you might live or receive care. Your attorney cannot make these decisions until such point as you are no longer able to make the decisions for yourself.

Attorneys

You can appoint one attorney, or as many attorneys as you think fit, although we tend to recommend a maximum of four (plus replacements if applicable). It is vitally important that you choose attorneys who you trust to act in your best interests. If you choose to appoint more than one attorney, then you must decide whether you want them to act “jointly” or “jointly and severally.” If they are to act jointly, then all attorneys must agree and act together on every decision. If you choose jointly and severally this means they can either act together or independently of one another. Jointly and severally tends to offer the most practical option, but feel free to discuss this with your Solicitor.

Attorneys:

cannot be a bankrupt (except for health and welfare);
must be over 18;
can be an individual or a trust corporation;
should not be a paid care worker unless there are special circumstances such as being a close relative of the Donor.

Things to consider regarding your choice of attorney(s):

Do you trust them?
Do you think they understand your wishes and feelings about how you would spend your money?
Are there likely to be any disagreements or problems between friends/family?
Are they willing to be appointed as attorney?
Do they know you well enough?
How many attorneys do you want?
Would it be a good idea to discuss it with your friends/family and tell them what you are planning to do and why?

You can include a provision that for example your accounts could be sent to another member of your family or a Solicitor for additional security. If you have any specific or strong feelings about any certain types of treatment or care, make sure you discuss these with your attorneys.

If you appoint a spouse as an attorney and you subsequently divorce or your marriage/civil partnership is annulled/dissolved, then the Power of Attorney will be revoked unless you have given specific instructions that it is to continue and there is a replacement attorney or more than one who act jointly and severally.

What can an attorney do?

In basic terms, most things that you could do.

Property and Financial Affairs attorneys can:

Sell your house and property;
Sell stocks and shares;
Make gifts on your behalf;
Pay bills and invoices; and
Deal with your finances including benefits and pensions.

Health and Welfare attorneys can:

Make day to day care decisions;
Decide whether you need to go into a care home; and
Accept or refuse life sustaining treatment (although you can choose not to allow them to do this as part of making your Power of Attorney.

The law says that your attorneys must always act honestly and in your best interests. Whilst you have the capacity to do so, you can revoke your Power of Attorney at any point. If you wish to discuss revoking your Power of Attorney, speak to your Solicitor or the Office of the Public Guardian.

Certificate Provider

This part of the application is done by your Solicitor at Lancashire Law as part of your transaction. In this section of the Power of Attorney, your Solicitor is confirming that you understand what you are doing by making the Power of Attorney and the powers that you are giving to your attorneys and that you are not being pressurised into making the Power of Attorney. Without this section, the Power of Attorney cannot be registered.

What next?

If you would like to instruct Lancashire Law to draft the Power of Attorney(s) for you, make an appointment to see one of our Solicitors at a convenient time and we will talk you through the process. To enable the drafting to be completed, we will need the names, addresses and dates of birth of yourself plus any attorneys or replacement attorneys. You should also give some thought as to whether you would like your attorneys to act jointly or jointly and severally.

Once the Powers of Attorney are drafted and signed by all parties, including your attorneys, we will deal with the registration of them for you (unless you do not want them registering yet). We will also store the Powers of Attorney for you free of charge.