Blog - Powers of Attorney

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By Allison Crossman

As people live longer, issues surrounding dementia continue to increase.  As is so often the case, early advice is the best advice according to Allison Crossman.

1.     How does someone set up a legal power of attorney if they think they’ll be a time they can’t handle their own affairs?

They would need to create a Lasting Power of Attorney (LPA) to appoint an Attorney(s) to step into their shoes to make property/financial decisions and/or decisions relating to health and welfare. The LPA must be registered at the Office of the Public Guardian before the Attorney(s) can act so best advice is to register the LPA once you and your Attorney(s) have dealt with the signing process.  You can create these yourself but they are legal documents and due to the authority you are giving your Attorney(s) it is best to seek advice from a specialist lawyer if you are considering putting LPAs in place.

2.    What happens if you don’t have a LPA and no longer have the mental capacity to deal with things?

Sadly we often come across this.  Someone (usually a family member) would have to apply to the Court of Protection for permission to deal with your finances.  It is for the Court to decide on whether that person is suitable. The process can be slow, costly and involve a great deal of paperwork including disclosure of finances and evidence of mental incapacity.  The person appointed (the Deputy) must report to the Court each year.  The other major disadvantage is that until a Deputy has been appointed your accounts cannot be accessed so your family may be faced with paying care costs or household bills. 

3.    The difference between a property and affairs LPA and health and welfare LPA: do you need both?

A Property/Financial LPA allows your Attorney to make decisions relating to all financial matters.  A Health and Welfare LPA allows your Attorney to make decisions relating to all aspects of your welfare including health.  The material difference is that your Attorney(s) under a Health and Welfare LPA can only act if you lack mental capacity whereas the Property/Financial LPA enables your Attorney(s) to act whilst you have capacity and in the event that you lack capacity.

You do not need to put in place both as they are separate LPAs and can be put in place independently of the other.  However, if you proceed with for example the Property/Financial LPA then your Attorney(s) will have no authority to make decisions relating to your welfare.  It is advisable to proceed with both types of LPA so your Attorney(s) have full power to make decisions on your behalf on all aspects.

For further information, please contact allison.crossman@twmsolicitors.com

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