The fact that we deal with family law at Higgins Miller means that we help people dealing with difficult life events such as divorce, children disputes and dealing with wills and probate. We also offer advice to anyone thinking of granting power of attorney to someone else, and that advice involves explaining what power of attorney is and helping them to choose the right person to give power of attorney to.
What is Power of Attorney?
Power of attorney is a legal tool which enables a person – known as the ‘donor’ – to nominate a person – known as the ‘attorney’ – to take decisions on various matters for them if they become unable to make those decisions themselves. Power of attorney is generally created because people are worried about what might happen if, at some point in the future, they lack the mental capacity to make decisions on their own behalf. In simple terms, mental capacity means having the ability to understand that a decision needs to be made, why that decision needs to be made and what the consequences of that decision will be. Lacking the mental capacity to make decisions due to a condition such as dementia or an illness or accident could leave a person and their nearest and dearest in a state of limbo, since not even spouses and civil partners are entitled to access bank accounts and pensions or to make decisions about health care unless POA has been granted.
There are two types of power of attorney, one which covers financial and property issues and one which covers health and social care. People often apply for both types of power of attorney, meaning that the attorney they chose can make decisions on issues ranging from paying a mortgage and bills and making repairs to a property to dealing with medical treatment and deciding where the donor should live. Given the range of decisions covered by POA and the fact that it places a great deal of responsibility in the hands of the chosen attorney, one of the most important parts of the process involves choosing the right person to give power of attorney to.
Who can I give it to?
Anyone can be chosen as your attorney as long as they are over the age of 18. You can also choose more than one person to give power of attorney to, with people generally opting for between one and four. If you create a property and financial affairs power of attorney then the person you choose can’t be bankrupt or be the subject of a debt relief order. Given the responsibility involved in power of attorney the person you choose should be chosen because you’re sure they will reflect your own wishes. You should be certain that:
- They know you very well
- You trust them to make decisions on your behalf
They can be relied upon and have the organisational and other skills needed to be an attorney
When you’re thinking of choosing someone to give power of attorney to you should look at things such as how efficiently they handle their own finances or how good they are at making decisions about their own wellbeing or the wellbeing of others. You should also factor in the length of time which might pass before your attorney actually needs to make decisions on your behalf, which could persuade you to choose someone who is younger than you are. The majority of people opt for a member of their family or a close friend, and it is important, before choosing someone to give power of attorney to, that you sit down to explain what your wishes are and ascertain that they will be happy to take on the role of attorney.
Some people, on the other hand, opt for a professional to grant POA to, such as a solicitor or accountant. This may be preferable when creating a financial affairs and property power of attorney, particularly if you’re worried that conflicts may arise within your family.
If you decide to give multiple people power of attorney then you can stipulate how they should work together. This could be the case if you have three children, for example, and want them all to deal with POA. You can decide how they will make decisions when applying to create power of attorney, choosing between the following options:
- Jointly – in this case the attorney always need to act together, and any decisions need to be made jointly, with all attorneys signing the relevant documents
- Jointly and severally – This means that attorneys act jointly on some issues but severally on others. You could stipulate, for example, that all attorneys need to agree on issues such as selling property, but that they can act on their own when dealing with day to day issues such as paying bills.
When creating power of attorney you should also nominate a replacement in case, at some point, the attorney becomes unable to carry out their role or no longer wishes to. The knowledge that you have a replacement in place will offer extra peace of mind. Once appointed, an attorney should always assume that you have the capacity to make a decision on your own behalf until it can be demonstrated that you no longer have mental capacity. They should also consider, if you lack mental capacity, the possibility that you will regain capacity and make the decision at some point in the future. This would apply if, for example, you were hospitalised and undergoing intensive medical treatment.
We can advise clients on choosing the best person to give power of attorney to in their case, and also whether they should set out preferences when creating power of attorney, explaining things you would like to have taken into account when decisions are made. You might stipulate, for example, that your money is only invested in companies with a reputation for eco-friendly policies, or that you want to live in a property with a garden.
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.