Q: If your Mum or Dad become unwell; you have an accident that puts you out of action for a while, someone in your family develops a degenerative medical condition or someone you know simply wants some help with their affairs, how can you help?
A: You need a Power of Attorney. This is a legal document which allows a person (the donor) to appoint a person or people (the attorney(s)) to manage an aspect of their affairs on their behalf, in the event that they were unable to. A general Power of Attorney under section 10 of the Power of Attorney Act 1971 would allow an attorney to act in relation to the donor's assets and finances (for example if they were out of the country for a period of time and therefore unable to act in relation to a specific transaction) whereas a Lasting Power of Attorney can be either in relation to property/financial affairs or health and welfare.
Q: So which do I need? What's the difference?
A: The key difference between a general Power of Attorney and a Lasting Power of Attorney is that a general Power ceases should the donor lose the mental capacity to make decisions. A Lasting Power, however, is drawn up for that very purpose, and remains valid even if the donor should subsequently lose mental capacity. Whilst general Powers are useful and/or necessary in some circumstances, we generally recommend that all of our clients should consider a Lasting Power of Attorney.
Q: This sounds very complicated – do I really need it?
A: We hear a lot from our clients that they do not feel it necessary to worry about such a situation until they are older, or that they only have joint assets. Our response to that? Any person of any age with any amount or type of assets could have an accident or contract an illness which renders them either physically or mentally incapable of managing their affairs.
The benefit of having a Lasting Power of Attorney is clear to see, it means that your affairs can be managed by someone else in your absence, whether we are talking about a physical or mental absence. Consider your own situation – we use a bank account as an example, as most people have their own bank account in their sole name, even if married. If anything was to happen to you which would prevent you from accessing your bank account, but you required urgent access to those funds, what would your bank do? 9 times out of 10, they would refuse to speak to anyone on your behalf without a validly executed Power of Attorney. This leaves you and/or your nearest and dearest with a big problem, and the only alternative is to make an application to the Court of Protection to appoint a Deputy to manage your property and affairs. This is a more costly approach and takes far longer than executing a Power of Attorney, not to mention the statutory waiting period before a Court Order is made.
Q: Okay, I can see the benefit but what should I do next?
A: Creating and executing a valid Lasting Power of Attorney is an art form, as many professionals will understand. The governing body for Lasting Powers of Attorney (The Office of the Public Guardian) have recently given some guidance on how to avoid the common problems with the registration of these documents, which extended to 7 pages! The most common complaint we hear from our clients is that the forms are not user friendly, and sadly we have to agree. However, with the right advice from a qualified professional, the task need not be so daunting or time consuming. The fact that over 800 applications are received each week by the Office of the Public Guardian, and they are on target to register in excess of 200,000 in 2011 shows that the importance of these documents is being recognised.