The How and Why of Granting Lasting Power of Attorney

The power of attorney is a phrase which describes a legal mechanism whereby a person nominates another person to handle their affairs in the event that they are no longer able to do so. There are numerous reasons why you may find yourself in this position. It could be caused by an accident, disability or an illness. Increasingly, people are turning to power of attorney because of concerns of what would happen to them and their assets if they were to develop dementia as they get older.

As a law firm which specialises in family matters we are keenly aware of the important role which power of attorney can play. All too often, people assume that, in the event of them becoming incapacitated, close relatives such as a spouse or their children will be able to visit a bank or building society and take over control of their financial affairs.  We know from the experience of our clients that this is not the case. We specialise in areas of law such as divorce, financial settlements and children disputes. This means we can bring insight into not only the legal ramifications of power of attorney but also the emotional aspects. That’s why it’s vital that anyone weighing up the advantages and ramifications of granting power of attorney should contact us for advice at the earliest possible stage.

A lasting power of attorney takes the form of a legal document which you sign at a time when you still have your mental capacity.  Many people worry that signing a power of attorney will stop them being able to control their own affairs, but this isn’t the case.  There are two types of power of attorney; a health and welfare power of attorney and a property and financial affairs power of attorney.

Health and Welfare

A health and welfare power of attorney is one which gives the person you appoint the right to make decisions on matters such as medical treatment and health and social care. It will only be used once it has been legally registered and you have lost the ability to act on your own behalf.

Property and Financial Affairs

This power of attorney gives the person you appoint the right to make financial decisions on your behalf, handling matters such as your bank account, properties and stocks and shares. Unlike a health and welfare power of attorney a property and financial affairs power of attorney can be used, with your permission, while you still have the capacity to make decisions on your own behalf.

The two different types of power of attorney are separate and have to be applied for independently. In both cases, you need to get the relevant forms from the Office of the Public Guardian. Perhaps the most vital aspect of the process is choosing the person you wish to act on your behalf. It could be a family member, a spouse, a civil partner or a professional person such as a solicitor. In all cases it must be someone you can trust, and someone with whom you have discussed the role of attorney. The law states that the attorney you choose has to be over 18 and, when dealing with a property and financial affairs power of attorney, must not have been made bankrupt or been the subject of a Debt Relief Order. It is possible to appoint more than one attorney in each case, and you must specify whether you wish them to act independently or together.     

Your lasting power of attorney will also have to be signed by someone who will confirm that you have taken it out without being under any pressure to do so. This can be someone who knows you well, or a professional such as a doctor or solicitor. Once the forms have been filled in, they have to be registered with the Office of the Public Guardian, for which a fee will be charged.

Clearly, taking our lasting power of attorney is a big decision, and is one which should be taken only after careful consideration. The truth is that many people shy away from taking such a step until it is too late to do so. If you were to become incapacitated your family may need to gain access to your finances in order to perform such basic tasks as paying a mortgage. Taking the trouble to establish power of attorney in advance will spare your family at least one set of problems if circumstances lead to you becoming incapacitated. The gravity of the choice, however, and the power which your chosen attorney will have, means that it’s vital that you get all of the details of granting the power of attorney 100% correct. That’s why the safest course of action is to take legal advice before making any choices.

If you’d like to learn more about lasting power of attorney, or similar processes such as taking out an advanced directive, then contact the team at Higgins Miller. You can do this by calling 0161 429 7251 or email us at [email protected]. We’ll provide a 20 minute appraisal free of charge and, if you decide to take things further, your fixed fee first appointment will cost just £50 (plus VAT). For details of our wider funding options, please see here.

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