Following my previous blog which touched on the importance of having a Will prepared (a legal document that deals with your affairs on your death), I am now going to explain why having a Power of Attorney (a legal document that deals with your affairs while you are still alive) is just as essential.
It is important to prepare for the possibility that, at some point in our lives, we may become incapable of making decisions or managing our own affairs. By having a Power of Attorney in place, you can save your family and loved ones the potentially time-consuming, costly and stressful process of seeking court intervention to manage your affairs.
A Power of Attorney is a useful and important document which operates during your lifetime, allowing the person (or people) you appoint as your Attorney(s) to make personal and/or financial decisions on your behalf if you lose mental capacity for whatever reason (e.g. stroke, accident, dementia etc).
The legal definition of being ‘incapable’ in this context is that you are ‘incapable’ of acting, making, communicating or understanding decisions; or retaining memory of decisions that you have made.
A Power of Attorney ensures that your choices will be respected, and your opinions still heard, even if you cannot express them yourself. These decisions include where you live, what medical treatment you receive and what happens to your home if you go into a care home – major life decisions that you would almost certainly like a say in.
There are three types of Power of Attorney:
This gives your attorney the power to deal with your money and/or property.
Continuing (financial) powers can be used by the attorney immediately after the Power of Attorney document has been registered with the Office of the Public Guardian. If the Power of Attorney is only to be used in the event of your incapacity, it must clearly be stated that the powers are not to be used until this happens.
This gives your attorney the power to make decisions around your health or personal welfare matters. This includes where you will live, what personal care should be in place, what you will do, and even (if necessary) what you will eat or wear. Your attorney may also consent to medical treatment.
Welfare powers may only be acted upon after the Power of Attorney has been registered with the Office of the Public Guardian and when you have lost capacity to make decisions on matters to which the powers apply.
It is generally recommended that you set up a Power of Attorney with a combination of continuing and welfare powers. However, it is your choice as to the type of Power of Attorney you wish to grant.
Your attorney should be someone who you trust and can rely on. It could be a family member, a friend, your spouse, partner or civil partner. You also have the option to appoint a professional, such as a Solicitor.
You can appoint just one attorney, or more than one attorney, to act. Your attorneys can act ‘jointly’, meaning they must make decisions together, or ‘jointly and severally’, meaning they can make some decisions together and some individually. For example, you can appoint attorneys to act jointly when making decisions over your money, but state that one attorney should decide where you should live.
The alternative to appointing two or more Attorneys together is to appoint a primary attorney to act alone but with a provision for a substitute, attorney should the primary attorney not be able to act.
There are many reasons why people put off setting up Powers of Attorney. Sometimes it is because they are currently in good health, and they do not want to think about a time they may not be. However, illness rarely comes with a warning, and accidents even less so. If you were to lose the capacity to make your own decisions, your next-of-kin has no automatic right to make them for you. Banks, building societies, doctors, care homes etc will not deal with someone who purports to be your next-of-kin unless and until an Attorney is properly appointed and the original registered Power of Attorney document is produced.
If you lose mental capacity for whatever reason and you have not set up a Power of Attorney then the only way that anyone, including your spouse or partner, can deal with your affairs would be to apply to the Court for a Guardianship Order which takes months to go through the Court and can be expensive.
If a Guardianship Order is to be applied for if you have lost your mental capacity, you have no control over who might apply to be your guardian. The person who does apply would have to go through a full Court application at the same time as trying to deal with your affairs as best they can in an extremely limited way. Clearly, no Court application for a Guardianship Order would be required if only a Continuing and Welfare Power of Attorney was set up before any issues arose with mental capacity.
If you have any questions about preparing a Power of Attorney, or if you still don’t have a Will in place, please contact myself by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or by calling 0141 333 6750 and ask to speak to me or a member of our Private Client Department.
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