Power of Attorney

Many people understand the need to have a valid Will. However, these will only cover the wishes of the person after their death. In the eventuality of the person losing mental capacity to make decisions about their finances and healthcare, their wishes and views could be protected if they have a valid power of attorney in place. A power of attorney is a legal document that gives another person the power to make decisions on your behalf. These documents are created to ensure that the wishes and interests of a person are protected during their lifetime when they are no longer able to make decisions relating to either their finances or health. The creation of a power of attorney allows the person to have some control over their future and to define their wishes. It is vitally important that you take expert advice from a lawyer that knows the law involved in these issues. Here we discuss the use and benefit of powers of attorneys.

What is a Lasting Power of Attorney?

A power of attorney is used where the person it relates to lacks mental capacity to make decisions for themselves. This can be on a temporary basis, for example because they need to have an operation or where a person is on an extended holiday and cannot act in person but there are financial or business matters that require ongoing attention. This would require an ordinary power of attorney, which would be restricted to a specific timeframe. They must be signed by the person creating the document in front of an independent witness.

Where the loss of mental capacity is permanent and long-term, a lasting power of attorney would be necessary. The person that creates the LPA will nominate one or more people to act on their behalf when they are unable to do so themselves.

There are two main types of LPA:

• A financial LPA, which covers financial decisions, including the sale and purchase of property, dealing with pensions and benefits, managing bank accounts as well as when debts and mortgages can be settled. These can be brought into effect before the person loses mental capacity and restrictions over what decisions can be made can be included in the document.
• A health and welfare LPA, which covers healthcare and medical decisions. These can only be used in the case that the person has lost mental capacity to make decisions about their health and welfare themselves. The types of decisions that can be included here include medical care, diet, life-sustaining treatment and housing arrangements. The attorney must always act in good faith and in the best interests of the person, taking into account what they have stated are their wishes.

To be valid, the LPA must have been entered into while the person still had full mental capacity and was aware of the implications of the document. The attorney cannot take advantage of the LPA an must not make decisions that would benefit themselves. The finances related to the LPA must be kept separate from the attorney’s own finances.

Why is a Lasting Power of Attorney useful?

Unfortunately, no one can know what is around the corner. There is a common misconception that in the event of a person losing mental capacity, such as through an accident or illness or declining mental health, their next of kin (spouse or children) can make decisions on their behalf. However, this is not automatically the case and in order to be given that power they would need to apply to the Court of Protection to get a relevant order. This can be very stressful where a family member is in hospital and not able to make decisions for themselves and the family is caught up in lengthy legal proceedings.

The fact that the person has to show they have the necessary mental capacity to make an LPA can cause issues for people who are not prepared. If the thought of obtaining an LPA arises after an accident or the start of dementia, then it is likely to be too late for them to make a valid LPA satisfying the mental capacity criteria.

What should you consider when creating a Lasting Power of Attorney?

It is very important to get expert legal advice in relation to these arrangements, since they do hand control over your wealth or healthcare decisions to another person. The person you choose is being given a great deal of responsibility (and power) and so you need to make sure you are choosing someone that is happy to act in this way and that you are happy to do so in your best interests. You should consider who you would be happy to make these decisions on your behalf. Consider how they handle their own finances to determine if you would be happy with them making financial decisions on your behalf. You do not need to allow them to make all decisions and you can decide which ones you will be comfortable with them making on your behalf. You can have more than one attorney and you can decide who makes which decisions. You can choose whoever you want to be your attorney, this can be a friend or family member or a professional such as a solicitor.

If you appoint more than one attorney it is possible that they will not agree over some issues, such as whether or not you should remain at home or go into a care home, or if your home should be sold or rented or decisions on life-sustaining treatment. It is, therefore, a good idea when the LPA is being devised to decide how decisions should be made and the arrangements for attorneys to make independent decisions. This can be helpful if they do not live near each other or are not in regular communication.

Contact our Power of Attorney Solicitors Bradford Today?

Our expert lawyers have a deep understanding and vast experience of issues surrounding powers of attorney. We understand the legal issues in this area and can advise you on the best options in your personal circumstances.

Call us on 01274 350 546 or fill out our online enquiry form.