Lasting Powers of Attorney allow another person - your 'Attorney' - to deal with either all or specific assets in your ownership and are useful in the management of the affairs of elderly or frail persons, or people of any age who are out of the country.
A Lasting Power of Attorney may be required in the future, if the law deems you to be mentally incapable (whether through old age or illness). By making a Lasting Power of Attorney you can choose somebody to look after your affairs should that situation arise. Otherwise the choice might be made for you or it might be necessary for there to be proceedings before the Court of Protection in order for the Court to appoint a Deputy which will be expensive.
If the law should deem you to be mentally incapable, your Attorney or Deputy may have to apply to the Court for a Will or Codicil to an existing Will to be drafted on your behalf, which can be a lengthy and expensive process. Although the Court makes every effort to ensure that the terms of such Will or Codicil are representative of what they believe you would have wanted, had you had the mental capacity to decide for yourself, there will always be an element of guess work. So, the end result may not in fact be what you would have wanted.
Cost of preparing a Lasting Power of Attorney
The charge depends on the work involved but estimates will always be given in advance
If you would like further advice, please e-mail Gunilla Horvath providing basic contact details we will get in touch with you to discuss your requirements.
Frequently asked questions
What is an Lasting Power of Attorney?
It is a document which appoints someone to act on your behalf in connection with either your financial affairs or your personal welfare matters. This may be necessary for a number of reasons. The person who is given the power to act on your behalf is called your Attorney. More than one Attorney can be appointed.
How does it differ from an ordinary Power of Attorney?
It continues in force even if you become mentally incapable of managing your own affairs. An ordinary Power of Attorney would automatically lapse in those circumstances, just when it was most needed.
Why should I make an Lasting Power of Attorney?
So that you can have the opportunity of choosing someone to look after your affairs if you become mentally incapable. Otherwise the choice might be made for you and Court of Protection proceedings would be the only alternative.
Who can make an Lasting Power of Attorney, and when can it be made?
It can be made at any time provided you are over 18 and in full control of your mental faculties. A physical disability at the time of signing will not cause a problem and the document can even be signed by someone else on your behalf at your direction.
What happens if I appoint more than one Attorney?
You have to decide whether they are to act independently or together; that is, whether any one of them can sign on your behalf, or whether all their signatures are needed. If Attorneys are to act together and one of them then dies or, for some other reason is unable to act, the Power of Attorney cannot be used any more.
What authority can a Lasting Power of Attorney give?
A Property and Affairs Lasting Power of Attorney can be restricted to cover only certain areas. Conditions can also be put in the document, e.g. that your Attorney must not invest your money in particular types of investment. A Personal Welfare Lasting Power of Attorney will also allow you to restrict the areas in which your Attorneys can act.
When do the powers of the Attorney begin?
A Lasting Power of Attorney must be Registered with the Office of the Public Guardian before it can be used by your Attorney to make decisions on your behalf. It is for this reason that it is wise to Register a Lasting Power of Attorney as soon as possible, even straight after it has been signed by you and your Attorney.
What happens when you become mentally incapable?
At that point your Attorney becomes able to make decisions on your behalf without consulting you first.
How will power be registered with the Office of the Public Guardian?
Your Attorney must complete a number of steps:
- He must inform you of his intention to register the Power. This gives you the opportunity to object.
- He must inform the people you have nominated to have notice of his intention to register the Power. They are given the opportunity to raise objections if they wish.
- He should then apply to the Office of the Public Guardian for registration.
- The Office of the Public Guardian will ensure that everything is in order and, if no objections are raised after a specified period of time, will stamp the original Power as having been registered.
What happens after power has been registered with the Office of the Public Guardian?
Your Attorney can now make decisions on your behalf. The Power cannot then be revoked by you. However, even after the Lasting Power of Attorney has been Registered and whilst you are still mentally capable your Attorneys must consult you on any decisions they want to make on your behalf.
Can your Attorney direct where you should live or what medical treatment you should have?
Yes. If you have chosen to make a Personal Welfare Lasting Power of Attorney with restrictions.
Can the Attorney make a Will and lifetime gifts on your behalf?
Unless he makes a special application to the Court of Protection for the execution of a statutory Will, your Attorney may not make or change your Will. There are also restrictions on the gifts which your Attorney may make on your behalf without a similar special application.
