Your guide to power of attorney
A lasting power of attorney is a legal document that gives someone you trust the ability to make decisions on your behalf if you no longer have the mental capacity to do so yourself. These decisions can include your financial affairs and healthcare arrangements. In this guide, we answer some common questions regarding lasting power of attorney.
What is the difference between an ordinary and lasting power of attorney?
Lasting power of attorney is different to an ordinary power of attorney. An ordinary power of attorney is a temporary power for someone to manage and make decisions for you for a short period of time. An ordinary power of attorney will end if you lose the mental capacity to make your own decisions. For long-term arrangements, you will need a lasting power of attorney.
Who needs a lasting power of attorney?
Anyone can have a power of attorney, however, you must be over 18 years old and have the mental capacity to make your own decisions when you sign the document.
Many people think they do not need a power of attorney because they currently have the mental capacity to make decisions. However, this is a common misconception. If you do lose mental capacity at some point, you will be unable to set up a power of attorney because, as noted previously, you must have mental capacity when you sign the document. If this happens, your family would need to go to court in order to obtain the power to make decisions on your behalf. This can be a very stressful and upsetting time for your family and can be a lengthy process, as the court usually carries out proceedings by post instead of holding a hearing.
Why should you set a lasting power of attorney up?
You may be in good health, but it’s important to consider your future. Of course, when we’re planning for the future, we don’t tend to think of illnesses and accidents. But with research indicating that over one million people in the UK could be living with dementia by 2025, it’s a good idea to take steps now to protect you and your family in the future.
Who should I choose to be my attorney?
The role of an attorney carries a great deal of responsibility, so it’s important to choose someone you fully trust. Many people choose a family member, such as a partner, a son or daughter, a sibling, or a parent, but they could also be a close friend or a professional, such as a solicitor. You can choose more than one attorney but you need to specify if they must act jointly (where they must work together on all matters), or jointly and separately (where they can choose to act together or separately).
Can I restrict some of my attorney’s powers?
It is possible for you to specify if you don’t want your attorney to have authority over certain things, such as specific assets or property. However, this is uncommon, as you choose your attorney because they’re someone you can fully trust to make decisions on your behalf.
What is the difference between an attorney and an executor? Does my attorney carry out my Will too?
Your attorney makes decisions on your behalf if you lose mental capacity, and your executor is the person you have chosen to carry out your Will. Your attorney does not act as your executor so cannot carry out your Will. This is because your attorney’s power ceases when you die, meaning they do not have the authority to administer your estate. They can only administer your estate if you have specified in your Will that they are your executor.
What happens if my attorney dies?
You can specify a replacement attorney if your original attorney dies or, in the case that they lose mental capacity, is unable to perform their duties. Specifying a replacement attorney is usually a good idea if only one attorney is to be appointed.
What happens if I don’t have a lasting power of attorney in place and lose mental capacity?
If there comes a time when you lose mental capacity and do not have a lasting power of attorney in place, the Court of Protection may appoint someone to make decisions on your behalf – your ‘deputy’. Whilst this person may be the person you trust the most, the Court are unable to know with certainty who this is. Someone who wants to make decisions on your behalf can also apply to be your deputy. Without a lasting power of attorney in place, you do not have a say in who your deputy is and if a family member wants to appeal the decision of the Court, this can be a lengthy and expensive process. Ultimately, it’s much more preferable to have a lasting power of attorney in place to prevent this from happening and to save your family the expense and worry.
How do I make a lasting power of attorney?
Golden Charter offers a comprehensive lasting power of attorney service that covers everything you need. Our legal experts work with you to put in place a lasting power of attorney that protects you and your family. You can rest assured that everything is taken care of – we sort out all of the paperwork, ensure everything is as you specify, and return the documents to the Office of the Public Guardian. You also have the option to register the documents with the Office of the Public Guardian yourself if you wish. For further information on our lasting power of attorney service, you can request a free information pack.