Powers of Attorney

Advice from Deborah Beal, Associate Solicitor - Wills & Estates at Thursfields LLP, who are Worcestershire-based solicitors. 

We all hope to be able to manage our own affairs throughout the duration of our lifetime. Unfortunately, however, sometimes we need physical help or it could be that we become mentally incapable of making decisions for ourselves.  Powers of Attorney are legal documents which allow you to appoint someone to assist with the management of your affairs should this be necessary either now, or in the future. 

As a solicitor specialising in this area, there are three different types of Powers of Attorney I often talk to clients about.

Lasting Power of Attorney

Lasting Powers of Attorney are by far the most common Power of Attorney I personally deal with. These are documents you can prepare well in advance, which allow you to appoint someone who could assist with your affairs should you become mentally incapable of managing them yourself.  There are two distinct different types of Lasting Powers of Attorney:


Lasting Power of Attorney for Property and Finance

 This Power of Attorney allows the Attorneys you appoint to manage your property and your financial affairs. This could be your home or rental properties and any of your bank accounts and investments, and personal belongings such as cars and jewellery. 

There are various options in relation to this document, but it allows you to let your Attorneys assist with your financial affairs whilst you are still mentally capable but for other reasons you want assistance.  It could be that you are abroad and so not physically able to sign the required paperwork, or it could be you have a stay in hospital or simply struggle to talk on the phone or visit the bank.  Whilst you have the ability to make your decisions, your Attorneys should only be carrying out your wishes.

However, by having this document in place, it means that if you ever lost the mental ability to manage your own affairs then your Attorneys would instead be able to do this for you.

Nowadays, people are living longer, and these documents are becoming more and more important. 

I do strongly recommend that if you have significant assets, you make a Lasting Power of Attorney to ensure that your affairs can be looked after if you could no longer do so yourself.  However, it is a very powerful document and so your choice of who will look after your affairs is of paramount importance.


Lasting Power of Attorney for Health and Welfare

This document allows you to appoint somebody to make decisions about your health and medical treatment and your personal welfare, only if you are unable to make those decisions yourself. The law says that whilst you have mental capacity you must be the person making those decisions, but if you were unable to understand and make an informed decision yourself, then you can name in advance the individuals you would want to do so instead.

These documents are ideal for anyone who would want specific individuals to be able to make these decisions on their behalf if they could no longer do so.  Without such a Power of Attorney it would be left to medical professionals and social services to make such decisions in conjunction with your closest relatives.  If the professionals and your family do not agree, it may be necessary to make an application to the Court of Protection to ask the Court to make a decision on these issues.

By making a Power of Attorney in advance you give your loved ones the ability to make these decisions on your behalf instead, and so long as they are behaving appropriately, there should be no requirement to go to Court.

General Power of Attorney

A General Power of Attorney is a relatively simple yet very powerful document. It allows someone to make decisions about your affairs if you wish them to do so.  You can restrict this decision to one issue only, or give someone the ability to make decisions about your affairs generally.  However, a General Power of Attorney is of no use if you become mentally unable to make your own decisions, as in those circumstances it cannot be used.

Most often, a General Power of Attorney would be used if you are physically unable to sign the necessary documents, for example if you’re going abroad for a period.  Given how powerful these documents are, I would recommend that you seek legal advice in relation to them.


Enduring Power of Attorney

These documents were the equivalent of Lasting Powers of Attorney for Property and Finance. They could be made up until the 30th September 2007 but had to be fully completed before then.  If you have an Enduring Power of Attorney and are happy with the Attorneys named under it, you may not need to take any action.

However, an Enduring Power of Attorney needs to be registered when the person who made it is beginning to become unable to make decisions for him or herself.


Conclusion

The above documents are all incredibly powerful and so I would recommend that you seek legal advice if you are considering making them or have any queries about the use of them.

Lasting Powers of Attorney and registration of Enduring Powers of Attorney can, however, be completed by you personally by using the registration forms on the Office of the Public Guardian’s website.