A Power of Attorney is a document which appoints someone of your choosing to act on your behalf. There are various types of Power of Attorney and in each case your Attorney must act as you would yourself and in any event in your best interests.
General Power of Attorney
A very simple Power of Attorney usually used to enable the sale of a property or asset on behalf of the owner. This kind of Power ceases to be valid if it is cancelled or if the person who makes it becomes mentally incapable so it is a short term solution only.
Enduring Power of Attorney
An Enduring Power of Attorney is still valid provided it was signed prior to the 1st October 2007. This type of Power only enables your chosen Attorney(s) to deal with property and finances, not health and welfare. The Power can be used by the Attorney immediately so long as this is not prevented by a restriction or condition in the Power. However, once the person who makes the Power loses capacity (becomes mentally incapable) it MUST be registered with the Court of Protection.
Lasting Power of Attorney
Anyone who wishes to retain an element of control over their affairs if they lose the ability to make decisions for themselves should consider drawing up a Lasting Power of Attorney. In simple terms, a Lasting Power of Attorney gives someone you trust (usually a relative, friend or trusted professional) the power to act on your behalf and make decisions for you if you aren't able to do so yourself due to mental or physical incapacity.
Having a Lasting Power of Attorney in place will make sure:
- The Attorney making decisions on your behalf has been chosen by you, not by the Court of Protection.
- Your financial affairs are managed in the event that you can no longer manage them yourself.
- That decisions can be made according to your wishes in connection with health and welfare.
There are two types of Lasting Power of Attorney, one in relation to Health and Welfare and one in relation to Property and Financial Affairs.
Health and Welfare Lasting Power of Attorney
This Power allows you to appoint one or more persons to make decisions about your Health and Welfare including medical care and/or life sustaining treatment and your daily routine, including where you might live.
Property and Financial Affairs Lasting Power of Attorney
This Power allows you to appoint one or more persons to make decisions about your financial affairs and any property you may own including paying bills for you, collecting benefits and selling your property.
In either case, the Lasting Power of Attorney must be registered at the Court of Protection before it can be used by your Attorney(s).
If you choose to appoint more than one Attorney you will need to decide how they can act for you. They can either act jointly (this means that the Attorney's must always act together and must therefore agree on all decisions made) or jointly and severally (this means the Attorney's can act together but can also act separately on their own).
A properly prepared Lasting Power of Attorney is a very useful document to give you peace of mind that your health, welfare, property and affairs will be properly looked after in the event that you are not able to make decisions for yourself. However, it is an important legal document in that it gives your Attorney the power to make decisions for you and control your finances. In view of this we would always recommend that a client seeks legal advice before preparing a Lasting Power of Attorney.
Registration of Enduring or Lasting Powers of Attorney
General Powers of Attorney do not need to be registered. Enduring Powers of Attorney must be registered with the Court of Protection if you lose mental capacity but can be used prior to that time. Lasting Powers of Attorney cannot be used until registered with the Court of Protection. The registration procedure takes approximately three months and other family members may need to be notified that it is taking place.
Our team of experienced private client solicitors have extensive experience of preparing both Health and Welfare and Property and Financial Affairs Lasting Powers of Attorney, often in conjunction with making a Will or preparing a Trust. What's more, we offer a complete range of fixed-fee services for Wills, Lasting Powers of Attorney and Trusts.
Our solicitors will be pleased to help.
Geoff joined the firm in 2019 and has over 30 years experience in dealing with Private Client matters. Geoff specialises in Wills and Probate, Trusts/Asset Preservation and Powers of Attorney.