What happens if you lose the ability to make informed decision about your own affairs?
Why Powers of Attorney are vital when planning your affairs
By Michele Todd, partner and head of private client, at hlw Keeble Hawson
We don’t like to think about losing the ability to make decisions or communicate effectively, but the sad reality is that a third of us will develop dementia or lose capacity in some way.
Putting in place certain safeguards before you become mentally incapacitated is wise - and appointing a trusted friend or family member to make decisions on your behalf can provide some peace of mind. This can be done through a Lasting Power of Attorney - a legal document which allows you to appoint someone to make decisions for you about your financial and property affairs and your wellbeing.
Q: What types of Lasting Power of Attorney are there?
A: There are two forms: one deals with your property and financial affairs while the other addresses your welfare – for example, appointing somebody to speak on your behalf and make decisions about your personal care, care homes and medical needs.
Q: How do you set up a Lasting Power of Attorney?
A: Decide which LPA you want or if you want both, then complete the appropriate form stating who you want to appoint - then sign it to approve the document in the presence of an independent witness.
At this stage, you must have somebody called a certificate provider to confirm that you are of sound mind, know what you are doing - and are not being pressured into drawing up the document. After this your attorneys will also sign the form – you are not required to be present and can send it to them. It is recommended that a solicitor advises on the whole process, checks the document, draws up a final draft and also certifies that you are capable of taking the decision to proceed with a Power of Attorney.
The next step is to decide whether to register the Power of Attorney with the Court now, or save paying registration fees until it is likely to be needed.
The downside of deferring is that the registration process can take at least 12 weeks - meaning that you’re not covered should you suddenly become incapable. As such, it is probably sensible to pay the fees straight away.
Q: How much does it cost?
A: Legal charges for drawing up the documents are between £300 for one and £750 for 4. The fee charged by the Court for registration is £110 per document.
However, this is more cost-effective than somebody – typically a child or another loved one – applying to the Court of Protection to acquire the same powers in an emergency if you don’t have a Power of Attorney in place. This process, known as being appointed your Deputy, can cost thousands of pounds.
Q: Can family members be attorneys?
A: Yes, but there is no automatic entitlement and they must be appointed by either the individual in question as Attorney or a court as Deputy. The concept of next of kin has no legal standing in England.
Q: Who else can be one?
A: Anyone you can trust to make decisions for you – for example, a friend, family member or colleague. It is also common for solicitors to act as attorneys for clients. It is best to have more than one Power of Attorney in case of holiday absence, sickness or an attorney’s sudden death. It is important to appoint somebody who is honest and responsible, although their decisions and spending are monitored. While beneficiaries of your will can challenge an attorney’s actions, this sort of conflict is best avoided at a sensitive time.
Q: Can attorneys be different ages?
A: Absolutely – as long as they are over 18 years old. It is important to obtain a mixture of different experiences, strengths and weaknesses. The downside of appointing somebody elderly is that they may be incapable of helping you at a time when you most need their assistance because of their own physical or memory issues.
Q: When does Power of Attorney end?
A: Attorneys can only represent somebody while they are alive: once they die, all authority ends and the will takes over.
Q: What happens if there is no will?
A: In such cases someone or several people - usually close family members - must apply for a Grant of Administration that allows them to dispose of the estate. This does not entitle them to take assets and finances for themselves; the intestacy rules setting out the strict order of entitlement apply still apply. A Power of Attorney is a powerful document. Seek professional legal advice if you are unsure about any of the implications. hlw Keeble Hawson’s experienced team of family and will and estate planning specialists includes partner Alex Guy, who is one of only 64 Deputies in the country and acts in all aspects of Deputyship, from making initial applications to conducting the client’s day-to-day operations.
For more information, contact Michele Todd on 0114 290 6207 or email firstname.lastname@example.org