WILLPOWER: Don’t leave it until the last minute to put your affairs in order. This month, Hannah Montague explains why making a Lasting Power of Attorney now, can save your family expense and heartache in years to come…
What is a Power of Attorney?
A Power of Attorney is a legal document enabling you to specify who you wish to act on your behalf, if you are unable to do so through physical or mental incapacity.
It allows the people you trust implicitly to make important decisions about your financial affairs or health and welfare, giving them the power to assert your best interests.
Many people suffer from memory loss as they age, but if it starts to happen on a regular basis, it could be an early sign of dementia. By drawing up Powers of Attorney earlier in life, you can rest assured your loved ones can act quickly and without further frustration or distress.
Are there different types of Power of Attorney?
Yes – and it is possible to have more than one set up. They are:
- General Power of Attorney: This document covers decisions about finances and is only valid whilst you have mental capacity. (That is defined as the ability to comprehend, make and communicate decisions.) It is helpful if you are going on a long holiday, into hospital or struggle to get out and about, as you can nominate someone to act on your behalf.
- Lasting Power of Attorney – Property and Financial Affairs: Offering wider ranging powers, this can be used while you still have mental capacity, or if you are physically or mentally debilitated. It is designed to help deal with issues such as buying and selling property, paying bills and making or managing investments.
- Lasting Power of Attorney – Health and Care Decisions: With one of these in place, your nominated attorneys can determine where and how you should be treated, the type of care you receive and day-to-day things, such as your diet, routine and living arrangements. It is also possible to permit your loved ones to make decisions about the giving or refusing of life sustaining treatment. Alternatively, you can opt to leave it to the medical professionals.
- Enduring Power of Attorney: These were replaced by Lasting Powers of Attorney in October 2007. If you set one up before that date, it will still be valid and will only need registering with the court if you are losing or have lost mental capacity.
How do I set up a Power of Attorney?
Taking professional advice is a must, particularly if your affairs are complex.
Your Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used, which takes 9-12 weeks to complete. There is a court fee of £82, but you may be exempt if you are on certain benefits. Individuals on low incomes may also be entitled to a 50% discount.
The Ministry of Justice has set up a scheme giving refunds of between £34 and £54 to people whose Lasting Power of Attorney was registered between April 1, 2013 and March 31, 2017. It must be claimed by February 1, 2021 by telephoning 0300 456 0300 or making a claim online.
Do I have any recourse if I am unhappy with my attorney’s actions?
It is crucial you raise any concerns with the Office of the Public Guardian if you are unhappy with a decision taken by your attorney. This is the department responsible for monitoring the process and can investigate allegations of fraud. They may also report to social services and the police, if necessary.
Specialist solicitors, like me, can help remove an attorney from their position if they are not acting in your best interests.
What happens if I don’t set up a Power of Attorney?
If you lose mental capacity without putting a Power of Attorney in place, family members would need to apply to the Court of Protection to appoint a deputy to manage your affairs. This can be a terribly longwinded, complex and expensive process.
Dementia is a progressive condition and you can’t predict your rate of decline. In some circumstances, people retain their mental capacity for years after formal diagnosis, whilst others will deteriorate speedily. Either way, if you have a Power of Attorney in place, there is no need to worry about what the future will hold.
To find out more about testamentary guardianship or making a will, why not book a free 30-minute consultation with one of our probate specialists? Telephone (0114) 218 4000, email: firstname.lastname@example.org or complete this form.