Financial Power of Attorney
This covers all aspect of your money, property and financial arrangements.
Financial decisions might be about:
- opening, closing and using your bank
and building society accounts
- claiming, receiving and using your
benefits, pensions and allowances
- paying your household, care and
- making or selling investments
- selling your home or investment properties
Health and Care
Health and care decisions cover such aspects as:-
- giving or refusing consent to health care
- remaining in your own home and getting help and support from social services or private care providers
- moving into residential care and finding a good care home in an area of your choice. For example close to family and or friends.
- day-to-day matters such as your diet, dress or daily routine.
- You can choose whether your attorneys or your doctors should make decisions about accepting or refusing medical treatment to keep you alive if you can’t make or understand that decision yourself.
You don’t have to wait until you have complex health or care problems to set up a LPA. Its a way of planning in advance for your care in case you can’t make decisions for yourself in the future.
Business Lasting Power of Attorney
- If you own a business you should consider appointing a separate attorney to look after your business interests.
- There are a number of everyday reasons why you might need a power of attorney in place. Whilst travelling abroad, you could be delayed by events beyond your control such as civil unrest, terrorismn or a natural disaster. Or an accident could leave you in an overseas hosptial bed and in no condition to make commercial decisions.
The consequences of not having a business lasting Power of Attorney
- If you own a business and lose capacity the bank will freeze the accounts very quickly. Without access to funds, businesses can and do fail.
Below is a selection of our most frequently asked questions
It is a legal document that gives someone else the power to act on your behalf.
There are different types:- Ordinary or General Power of Attorney (PoA) (these are in fact the same) Under this type, the right to act can be transferred to someone else. Usually for a specific purpose and for a set period of time. For example:- You might live abroad for three months, rent out your existing property and need someone to act on your behalf regarding the property during this time.
Lasting Power of Attorney (LPA or LPoA) . Lasting, as the word emplies does not have a time limit and ensures that the authority remains in place after you lose mental capacity.
There are two types of LPA. One provides authority relating to financial matters the other to health and care. The reason there are two is because you may wish to appoint different people to take care of different aspects of your life.
The Office of the Public Guardian (the OPG) administers the LPA system. Registering the documents and investigating complaints.
It is not just being diagnosed with Dementia that could give rise to losing Mental Capacity. You could suffer brain injury, from say a car accident or an accident at home, for example falling off a ladder whilst decorating. There could be side effects of medical treatment or a serious illness or disabilty. You could suffer a stroke. It could be the result of mental health problems. Alcohol or drug use.
If this should happen, even temporarily, you would need someone to act on your behalf. Pay your utility bills, purchase clothing for you, access your bank accounts, make decsions regarding any medical treatment or where this treatment is carried out.
Putting a Lasting Power of Attorney in place now, which under law can only become effective once you lose Mental Capacity, gives you and your loved ones piece of mind to know that your wishes can be acted upon without undue delay.
Without a registered Lasting Power of Attorney in place, should you lose Mental Capacity, i.e become unable to make decisions for yourself, an application will need to be made to the Court of Protection for someone to act on your behalf. The Court will appoint a deputy of their choosing to act for you. It is a myth that your next of kin, including your spouse/partner or children will automatically have authority to act. A separate application will need to be made for Property and Financial Affairs and Personal Health and Welfare. The cost for these applications is almost double that of setting up a Lasting Power of Attorney.
The Mental Capacity Act 2005 (MCA) provides a legal framework to protect vulnerable people over the age of 16 who are unable to make decisions for themselves. If someone is unable to make certain decisions for themselves, they are said to ‘lack capacity’.
The Act sets out a test for assessing whether a person has the capacity to make a particular decision at a particular time. The test is only concerned with the decision that has to be made at a specific time. For example, you may be quite capable of deciding what food shopping you need but are unable to cope with paying your bills or handling large sums of money. Or you may have difficulty understanding and consent to a major operation.
It is a two-stage test:-
To determine whether you have an impaired brain or impairment of the mind or some other disturbance that affects the way your brain works, and; if so, whether the disturbance is so great that you lack the ability to make the decision in question.
In determining the second part of the test, you will lack the capacity to make a particular decision if you can not:-
- understand information relevant to the decision
- retain that information
- use or weigh that information when making a decision
- communicate a decision in any way.
If you are unable to do any one of the above, you will lack the capacity to make the decision. No one can be labelled ‘incapable’ on the basis of a particular diagnosis, and the second part of the capacity test must always be considered.
Before an LPA can be used it must be registered with the Office of the Public Guardian (OPG).
The registration process can take up to 12 weeks. It cannot be used until it has been formally approved and registered. If the donor loses mental capacity before the LPA is registered and the attorney needs to make decisions urgently, they will need to apply for a Court order.
By registering it at the time it’s drawn up prevents this problem arising.
Everyone over the age of 18 should have an LPA in place. Lose of mental capacity can happen at any time. It is not restricted to the elderly. To ensure your wishes are carried out…. take action today.