Establishing a Power Attorney means appointing somebody to make decisions regarding your property; financial affairs and care. They can be established on a temporary basis or for longer.
There are three different types of Power of Attorney that can be used to manage your financial affairs and welfare matters.
An Ordinary Power of Attorney (A General Power of Attorney in Scotland & Northern Ireland)
This type of Power of Attorney allows you to transfer temporary control of your affairs. It can cover all or just some aspects of your financial affairs. A person must have mental capacity at the time of setting one up. The power stops should you lose capacity. In the event of you losing capacity a family member or a close friend would need to apply to the Court of Protection in order to manage your affairs on your behalf.
In setting up an Ordinary Power of Attorney it’s advisable to discuss matters with a solicitor or other legal advisor. An Ordinary Power of Attorney starts on the date specified in the document and doesn’t need to registered anywhere. Ordinary Powers of Attorney can have a limited time span of operation or can be open-ended. Should you wish to end an open-ended Ordinary Power of Attorney you may need a ‘deed of revocation’ to cancel it. Again a legal professional can advise you how to do this.
Lasting Power of Attorney for Property & Financial Affairs (A Continuing Power of Attorney in Scotland)
A Lasting Power of Attorney allows you to appoint another person to make decisions about your financial and property affairs. You would have mental capacity to make one and the Lasting Power of Attorney needs to be registered before the person appointed under the Power of Attorney can use it.
Lasting Power of Attorney for Health & Welfare (Welfare Power of Attorney in Scotland)
A Lasting Power of Attorney allows you to appoint another person to make decisions about your health and welfare matters. Again you would need to have mental capacity to make one and the Lasting Power of Attorney needs to be registered before the person appointed under the Power of Attorney can use it.
In Northern Ireland there is just one Lasting Power of Attorney that covers financial affairs, property, healthcare and welfare matters. There is not a separate Lasting Power of Attorney for healthcare and welfare matters.
How to establish a Lasting Power of Attorney
Passing on control of your financial and legal affairs is an important decision. It is advisable to seek advice from a legal professional.
A legal professional such as a solicitor or will-writer may charge you fees for their advice but there’s no charge for drawing up a lasting Power of Attorney. Unless it is registered it cannot be used. Registration fees apply separately to each financial Power of Attorney and welfare Power of Attorney.
It can take up to 3 months to register a Power of Attorney. Once the Power of Attorney is registered it can be acted upon even if you are still able to manage your affairs. You need to make clear on the form whether or not you wish the Power of Attorney to apply with immediate effect. Lasting Powers of Attorney can be altered or cancelled at any time whilst you have mental capacity. It can be advisable keeping a copy at home together with other important documents for future reference.
You can find further information regarding Lasting Powers of Attorney at these websites.
Advance Care Planning
Advance Care Plans can influence decisions regarding your welfare in the event that you lose capacity.
Advance Care Plans involve firstly an Advance Decision expressing your wish to have medical treatment withheld. An Advance Decision is often referred to as a Living Will. Medical practitioners by law must respect your wishes contained in the Advance Decision or Living Will.
A second component of Advance Care Plans is an Advance Statement expressing your wishes about other elements of your healthcare. A key difference with an Advance Decision is that an Advance Statement does not need to be legally complied with.
It is advisable to include details of any Advance Care Plan with a health and welfare Lasting Power of Attorney. This means that your attorney must take these wishes into consideration. You can also give your attorneys the authority to make decisions regarding life sustaining medical treatment. It is also advisable to let close family and friends know about your wishes contained in the Advance Care Plan.
What happens if you Don’t Have a Power of Attorney?
Should you become mentally incapacitated and not have a Power of Attorney in place your loved ones would be unable to manage your financial and many of your health and welfare needs. Instead your loved ones would need to apply to the Court of Protection to be appointed as deputies to manage your financial affairs and your health and welfare needs. Applying to the Court of Protection in these circumstances can be costly and time-consuming for your loved ones. In addition the powers of deputies under Court of Protection orders tends to be more restrictive than those that can be provided by lasting Powers of Attorney.
Who should you choose as your Attorney?
Attorneys have a legal duty to always act in your best interests. They can be a family member or a close friend. It’s important to discuss with them before appointing them as your Attorney as they may not wish to take up the responsibility. (In the event you became incapacitated an Attorney can resign their Attorneyship should they wish to do so). You could appoint a solicitor or financial adviser to act as your attorney but they charge you fees for doing so.
You can appoint one Attorney or multiple Attorneys. You can also specify whether they must unanimously agree to every action or whether decisions can be made on the basis of a majority vote of Attorneys. You can also appoint them jointly and severally. This means that each attorney can make decisions alone and sign documents alone.