Have you ever considered whether your family would be able to manage in a situation where you were unable to sign documents or make decisions for yourself. Everyone is aware of the importance of making Wills but Lasting Powers of Attorney can often be left at the bottom of the to-do-list, being viewed as less significant, when the truth is that they are equally as important as they enable your loved ones to continue managing your affairs, on your behalf, for as long as possible. If you were to lose your mental capacity as a result of dementia, an accident, illness or stroke, by making Lasting Powers of Attorney, you can appoint people with your best interests at heart, to make decisions in respect of your finances or health and welfare should you not be able to make them for yourself.
What is Lasting Power of Attorney or an LPA?
A Lasting Powers of Attorney or LPA is a legal document which allows a person (the Donor) to appoint someone (the Attorney) to assist in making decisions on their behalf. The LPA will need to be registered with the Office of the Public Guardian before it is valid and the power can be used by the Attorneys.
There can be up to five Attorneys appointed but careful consideration would need to be given to who to appoint and how to appoint them. For example, would you want all attorneys acting together, or independently? It is not uncommon for appointments to be made on a mixture of joint and independent. Every day decisions such as controlling bank accounts can be managed by any one of your attorneys however; more major decisions such as the investment of large sums or the sale of your house could be made on a joint basis with all of your attorneys needing to agree on the course of action to be taken.
Your Attorney can only make decisions or take action on your behalf either at your specific instruction or if you are mentally incapable of doing so yourself.
What type of Power of Attorney are you likely to need?
There are two types of LPAs:
1. Property and Financial Affairs
2. Health and Welfare.
Both documents allow the Attorneys to make decisions on the Donor’s behalf. If the Donor becomes incapable of managing their affairs then the Attorneys will have the power to continue to make the decisions on the Donor’s behalf.
But, what about my spouse, signatory or Next-of-Kin?
People often think they can get by without an LPA but more often than not, this is not the case. If, for example, you are a signatory, the power will only remain valid while the account holder has full mental capacity.
Furthermore a “next-of-kin” has no legal standing and a spouse is unable to see your medical notes or make medical decisions on your behalf without official authority.
Please contact us at HCprivateclient@herrington-carmichael.com or call us +44 (0)1276 686 222.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
