(Based on the laws of England & Wales and general legal information on Powers of Attorney). It is a common phrase, but when asked a good percentage of the population will most likely not be able to really give you the ins and outs of exactly what a ‘Power of Attorney’ is and just what they are able to do.
Power of Attorney actually relates to a document which allows you to give somebody else the authority to deal with your financial or personal welfare matters for you. This delegated person is an ‘attorney’. People appoint an attorney in the event that an accident or illness leaves them mentally unable to make decision. If you are unable to make decisions and you do not have an attorney your affairs will go through the Court of Protection which was set up to protect the assets of vulnerable people. The Court has recently been revamped in 2007 following the Mental Capacity Act in 2005 and was given extended jurisdiction. The Ministry of Justice claim the changes have resulted in a more personalised approach with more flexibility over how money is spent.
If you wish to appoint an attorney you have a few options to choose from, which your solicitor will be able to help you through. But here is a brief outline and overview:
You can have more than one attorney, and if this is the case they will have to act jointly or alternatively you can make it so they can act independently. Whatever the case, the designated individual will need to be over 18 and somebody who you truly trust to make financial decisions on your behalf
Power of Attorney can be broken down into three main areas. We will start with an Ordinary Power of Attorney. This level allows for the delegation of financial affairs, the degree of control you hand over is up to you, you may wish to give general power – handing over the control of your entire finances or set certain limitations, for example, asking somebody to take care of the sale of your home. They are ideal if you need a short term financial matter taking care of and it might not be that you are unable to make the decisions yourself – maybe your home is on the market and you are going away on holiday for an extended period of time, if you want the sale of your house to progress while you are away you will need to appoint somebody to make decisions. However this type is not suitable for long term planning as if the person who has made the power loses their mental capacity it will cease to be effective, for this reason you should consider a Lasting Power of Attorney, the second type.
A Property and Affairs Lasting Power of Attorney has much the same power as an Ordinary Power of Attorney, dealing with financial affairs. The final type is a Welfare Lasting Power of Attorney who has the authority to make welfare and healthcare decisions for you if you lack the mental capacity to make them yourself. This would include the decision to withhold any life sustaining treatment, if you wish.
Appointing an attorney can really allow you to feel that you can remain in control following an injury or deterioration in your health as by appointing someone you know and trust, you will know that they have your best interests at heart.
As the Power of Attorney is a legally binding contract there are a few rules and regulations which must be formally processed before it comes into effect. Firstly a certificate must be provided by either a qualified professional or an individual who has known you for at least two years which ensures you understand the Lasting Power of Attorney, you have not been placed under any pressure to make it and also that there is no reason why you should not make the LPA. The Lasting Power of Attorney also needs to be registered at the Office of the Public Guardian. You should be warned however, that this process can take a number of weeks, so if the matter is urgent it is important to register as soon as possible.
If you have any other questions regarding the Power of Attorney or how it may be able to apply to your specific situation, it is best to speak to your solicitors. They are specialists in their field and know how to apply the law to your circumstances.