Many clients are keen to prepare a Will to ensure that their estate is distributed according to their wishes when they die. However, often clients deliberate over preparing Lasting Powers of Attorney and quite often wish to re-visit these down the line rather than preparing them at the same time as their Wills. This guidance note briefly outlines the purpose and effect of a Lasting Power of Attorney and emphasises the importance of this document.
Lasting Powers of Attorney allow you to appoint people you trust to make decisions on your behalf if you ever become unable to do so yourself.
There are two types of Lasting Powers of Attorney, one in respect of property and financial affairs and the other in respect of health and welfare. These documents appoint attorney(s) to make decisions on your behalf should you lose capacity to do so for yourself, or in the case of the property and financial affairs document if you simply require assistance with the management of your affairs.
In the absence of a Lasting Power of Attorney, if you become unable to make decisions for yourself, the Court of Protection can become involved and appoint a deputy to act on your behalf, if it is deemed necessary. You may not have any control over who is appointed, and family and friends do not automatically have the right to take over managing your affairs, which can cause financial, legal and emotional problems for your family at an already difficult time. The Court is reluctant to appoint welfare deputies and seem to prefer to make one-off specific decisions, as and when required.
We would recommend preparing Lasting Powers of Attorney for the following reasons:
Preparing a Lasting Power of Attorney allows you to appoint attorneys whom you know and trust to make decisions in your best interests if you are ever unable to do so in the future. This prevents a person whom you do not trust or do not know from applying to be your deputy if you were to lose capacity and someone was required to manage your financial affairs;
It is reassuring to know that your appointed attorney(s) can make decisions on your behalf and prevents a situation where a friend / family member does not have authority to make decisions for you or must apply to the Court to be able to do so;
3) Easier and cheaper
Preparing a Lasting Power of Attorney now will make things easier for your family and friends in the future. It will be more expensive, difficult and time-consuming for them to get the authority to act on your behalf when you are not able to give it. The Court fee alone is £400 for applying to be appointed as someone’s deputy!
When preparing a Lasting Power of attorney, you can provide your attorney(s) with your wishes and preferences in respect of your property and finances and health and welfare so that your attorney(s) know how you would like decisions to be made.
5) Peace of Mind
It may be that your Lasting Power of Attorney will never be used but you will have peace of mind that, if you become unable to manage your affairs or make decisions in relation to your health and welfare, you have chosen someone who you trust and who will act in your best interests to look after such matters on your behalf until your death.
The Private Client team at Clarion have a vast amount of experience in mental capacity advice, including advising on and preparing Lasting Powers of Attorney and Deputyship applications and the ongoing administration of someone’s property and financial affairs where a Lasting Power of Attorney has not been prepared and the person has lost mental capacity. If you have any questions in relation to or require guidance on Lasting Powers of Attorney, and the two different types, please do not hesitate to contact the Private Client team on 0113 222 3243 or at firstname.lastname@example.org.
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