Clients come to Higgins Miller for advice when dealing with some of the most stressful things life can throw at them. This includes divorce, dealing with wills and probate and handling adoption. Our expertise is combined with an understanding of the stress which dealing with legal issues can cause and an ability to communicate in plain English when supporting our clients. This is particularly useful when offering advice on the topic of power of attorney.
You may be someone who has been asked to be an attorney by someone close to you, or perhaps you’re thinking of granting power of attorney over your affairs to someone else. In both cases we can explain exactly what POA is, how it operates and what the pros and cons are.
What is Power of Attorney?
Power of attorney is the name of a legal tool which enables a person to nominate someone, who will be known as the attorney, to make decisions on their behalf in the future, if a point comes at which they won’t be able to make those decisions on their own behalf. The inability to make the kind of decisions on financial and health matters which are covered by POA could be caused by anything from a long term condition such as dementia to an accident or temporary illness.
The legal term for the conditions under which POA would be used is if the ‘donor’ – the person granting power of attorney – lacks the mental capacity to make decisions and act on their own behalf. Mental capacity is defined as the ability to understand that a decision needs to be made, why that decision needs to be made and what the consequences of making the decision will be. If a person becomes lacks mental capacity as defined above, then POA will mean that someone they trust will be able to make decisions on their behalf.
Types of POA
There are two types of power of attorney – power of attorney over financial and property matters and power of attorney over health and care. These can be registered individually, although many people opt to grant both types of POA at the same time. In order to establish power of attorney, an individual needs to register their application with the Office of the Public Guardian (OPG).
Power of Attorney for Health and Care Decisions
POA over health and care decisions can only be used once the donor has lost mental capacity. The attorney named under the power of attorney will be able to make decisions on a range of health and care issues, including the medical care provided to the donor, the kind of social activities the donor should take part in, who should have contact with the donor’s doctor and even where the donor should live. Depending upon the wishes of the donor at the time the power of attorney was granted, it may also give the attorney the right to make decisions regarding lifesaving treatment.
POA for Property and Financial Decisions
When a donor creates POA over property and financial decisions they can stipulate whether it will operate while they still have mental capacity, or only come into force if they lose mental capacity. A power of attorney of this kind could cover issues such as paying a mortgage, paying bills, buying and selling property, investing money and arranging for repairs to a property. At the time of creating the power of attorney the donor can choose to specify particular decisions which the attorney is entitled to make, or opt to hand over all decision making. The attorney chosen by the donor must prepare regular accounts demonstrating that their personal funds remain separate from the donors, and enabling the donor to monitor how much of their money has been spent and still remains.
Filling in the forms to create a POA should only be done with the help of experts like those at Higgins Miller. Not only will we help with the technical aspects of creating a power of attorney, we will also explain exactly what kind of impact it will have and sign to the effect that we know the donor understands what they are doing and is under no pressure to create a POA. We will also explain that without a power of attorney being created, even a spouse or civil partner will have no right to make decisions on issues like health care, or to access things like pensions and bank accounts if their spouse or civil partners loses mental capacity.
As well as dealing with creating POA we can help clients to write or update their will. As with power of attorney there are many misconceptions around issues such as how an estate will be divided after death and what a person such as a spouse or live-in partner will be entitled to receive. We’ll deal with these misconceptions and make sure that our client retains a degree of control over their finances both during their life and when they have passed away.
If you’d like to find out more about Power of Attorney please call us on 0161 429 7251 or email us at [email protected]. We’ve recently passed our Cyber Essential accreditation, something which demonstrates our forward-thinking attitude and determination to remain ahead of the competition. The first 20-minute appraisal is provided free of charge, and we’ll give you the first appointment for a fixed fee, so you don’t have to worry about how much our advice is going to cost. If you want to explore our wider charging system then please take a look here.