Will-Writing and Lasting Powers of Attorney
Lasting Powers of Attorney |
A Lasting Power of Attorney ensures that the people who make the decisions when you cannot are the people you choose  A will only comes into effect once we have departed - if a situation should arise where we are alive but incapacitated our will has no effect. Although some might assume that our spouses or close relatives would automatically be allowed to make choices for us, this is not the case - if we do not make a Lasting Power of Attorney in advance it can be a lengthy and expensive process for our loved ones to gain control of our affairs. A Lasting Power of Attorney allows you to grant the people you choose the power to make decisions on your behalf in certain circumstances. It can be flexible - LPAs can be written to allow multiple attorneys to act together, solely or in different capacities. You can also limit the amounts each attorney can deal with solely and make detailed notes about how you would like your affairs dealt with. It is our opinion that all adults should have wills and LPAs, especially anyone who has a spouse, civil partner and particularly any dependent children. |
Health and Welfare Lasting Power of Attorney A Health and Welfare Lasting Power of Attorney allows you to choose people to act on your behalf to make decisions about your health and personal welfare when you can't make decisions for yourself. This can include decisions about your healthcare and medical treatment, decisions about where you live and day-to-day decisions about your personal welfare, such as your diet, dress or daily routine. Your attorneys can use a Health and Welfare Lasting Power of Attorney only after it has been registered and stamped on every page by the Office of the Public Guardian and only when you lack the capacity to make the decision in question. When a Lasting Power of Attorney is registered a third party of your choosing must be informed as part of the process to ensure that those registering it are doing so legitimately and in your interests. This should not be confused with a 'Living Will' which is a different kind of document and does not bestow the ability to make these decisions on any party but rather expresses your intentions in advance in case such a situation should arise. |
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Property and financial Affairs Lasting Power of Attorney A property and financial affairs Lasting Power of Attorney lets you choose one or more people to make property and financial affairs decisions for you - this could include decisions about paying bills or selling your home. You can appoint someone as an attorney to look after your property and financial affairs at any time. Your attorneys can use a Property and Financial Affairs Lasting Power of Attorney only after it has been registered and stamped on every page by the Office of the Public Guardian BUT, unlike a Health and Welfare Lasting Power of Attorney, your attorneys can make decisions for you as soon as this lasting power of attorney is registered regardless of whether or not you lack mental capacity. For this reason it's common for us to advise clients to place restrictions in this type lasting power of attorney depending on their preferences. For example you might include a condition that means the attorney can only make decisions when you lose the ability to do so yourself. |
| We also recommend other restrictions where a client's needs and preferences warrant them. For example if you are appointing attorneys who will also be your beneficiaries and wish to avoid any potential for future disputes you might wish to place an upper limit on the monetary amount each attorney can deal with solely and require that all your attorney's act jointly with larger amounts. |
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The obligations and duties of your chosen Attorneys
Your attorneys cannot do whatever they like - they are legally obliged to act in your own best interests. They must take into account all relevant circumstances including consulting with you and with anyone else interested in your health and welfare. We strongly recommend writing all the notes we can in your Lasting Power of Attorney documents to assist your attorneys in identifying your views.
Your attorneys must follow the principles of the Mental Capacity Act 2005, which include;
| 1. | They must assume that you can make your own decisions unless they establish that you cannot do so. |
| 2. | They must help you to make as many of your own decisions as you can. They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been made without success. |
| 3. | They must not treat you as unable to make the decision in question simply because you make an unwise decision. |
| 4. | They must make decisions and act in your best interests when you are unable to make the decision in question. |
| 5. | Before they make a decision or act for you they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the intended purpose. |
Finally, you can cancel a lasting power of attorney at any time before or after it is registered as long as you have mental capacity to cancel it. This means that if your situation changes or you wish to appoint different attorneys you can do so.
Next Steps If you would like to discuss the options, do feel free to contact us.
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