APPOINTING A POWER OF ATTORNEY
Appointing a Power of Attorney or having guardianship provisions in place can help prepare you and your family for sudden changes in circumstance. It helps if everybody in your family knows who has been nominated to make important decisions when somebody is no longer able to decide for themselves. It is also useful to know what they might have wanted in a range of common situations.
Powers of Attorney
Powers of Attorney are legal documents that let a person choose someone they trust (an 'agent') to act on their behalf if they become unable to make decisions for themselves.
General Power of Attorney
A General Power of Attorney, gives someone the legal ability to act on someone else's behalf in financial matters such as paying bills and managing money if for any reason they are unable to manage financial matters themselves. For example, a daughter may be caring for her frail mother who has mobility difficulties and can no longer go to the bank to pay her bills. Her daughter, with a power of attorney, can pay her mother's bills on her behalf.
A General Power of Attorney does not allow the attorney to continue to act on your behalf after you have lost capacity. However, an Enduring Power of Attorney can allow this if a clause is included in the document indicating that the attorney's authority extends past the individual's loss of mental capacity.
Capacity is the ability to make decisions and understand the effects of those decisions. A person is said to have capacity when the person can understand the information and choices presented, weighing up the information to make a decision and then communicating that decision. A person who can't follow this process and communicate decisions is said to lack capacity.
Enduring Power of Attorney
An Enduring Power of Attorney will operate when a person can no longer make decisions or act on their own. A person must appoint their enduring power of attorney before they lose capacity.
An Enduring Power of Attorney cannot make lifestyle, accommodation or medical decisions and is limited to financial or property; only an enduring guardian can make lifestyle decisions on someone else’s behalf. Enduring Power of Attorney arrangements can be made so that they come into effect immediately or remain dormant until a specific event or circumstance arises.
Enduring powers need to be prepared in a particular way and you should consult a solicitor. Printed Power of Attorney forms are available from newsagents. You can cancel ('revoke') an enduring power at any time provided you are still competent.
Who can appoint enduring powers?
To appoint enduring powers, you must have capacity, be competent and able to understand what you are doing. You cannot appoint enduring powers for another person only for yourself.
Under some circumstances, a Guardian or Administrator can be appointed by the Guardianship Tribunal to protect the interests of somebody who is not competent to make decisions for themselves. This usually happens when there is concern about their rights.
Choosing your agent to act as your Attorney
Your agent can be any competent adult who is able and willing to act on your behalf.
Choose someone that you trust to act in your best interests and carry out your wishes. He or she should also understand your views about the decisions they might be asked to make for you and know you well enough to make the kind of choices you would make for yourself.
If you wish your attorney to be able to deal with your real property such as a residence or investment property then the Power of Attorney will need to be registered with Land Registry Services. We are able to do this for you.
Making your wishes known
If you have clear views about particular medical and legal situations that might affect you, write them down. This is sometimes called an 'advance directive'. Ask your doctor or lawyer to help you to work out what you would like to do in a range of common situations.
Discuss your views with close family members and friends and give them copies of your advance directives. Letting people know in advance what you want in a particular situation can help prevent distress or conflict if different people have different views about what should be done.
When you are ready to appoint a Power of Attorney contact us for
an appointment to take instructions for the preparation of the necessary documents.