In the future, you may need someone to look after your welfare or financial affairs, particularly if you become mentally incapable of handling them yourself.
A Power of Attorney document allows you to appoint other people (your ‘Attorneys’) to assist in your decision making.
Many people regard this document as unnecessary on the (possibly shortsighted) basis that they do not expect to lose mental capacity. However, in this sense, the document acts as a form of insurance which can become the most sought after document available, if the need arises. There are several reasons to put such a document in place:
A Power of Attorney is a legal document which allows you to appoint someone to act on your behalf during your lifetime. This is most commonly used in the event you lose mental capacity. In this case, your Attorney has power to deal with your welfare and financial affairs.
Ordinarily, if an individual was to lose mental capacity, their family would have to apply to the court to deal with their affairs. This can be a very costly and time consuming process. A Power of Attorney deed circumvents this cumbersome process.
If you were to lose mental capacity without a Power of Attorney in place, your family must apply to court to deal with your affairs. In this case, they are applying for a ‘Guardianship Order’; to be appointed as your legal guardian.
The main difference is the cost implication as Guardianship applications can cost £1000’s in legal fees. The guardianship process can also take months to complete, and thereafter, the Guardian must prepare annual accounts to be audited. In addition, you are able to choose your Attorney, but the court decides on an appropriate guardian.
There are two main types of Power of Attorney; Continuing (i.e. Financial) and Welfare. A Continuing Attorney can act on your behalf in any decisions involving your financial situation, whilst a Welfare Attorney can act on your behalf in relation to decisions regarding your healthcare.
You can appoint anyone aged over 16 to be your Attorney, and you can appoint the same person to act as both Continuing and Welfare Attorney, or separate people for each role.
In choosing a suitable Attorney, you may wish to consider:
– Is your proposed Attorney someone you trust
– Is your proposed Attorney comfortable with this role
– Are you comfortable with the Attorney knowing details of your affairs
– Does your Attorney have capacity
– The practicalities of appointment e.g. geographical location.
– A suitable substitute Attorney, in the event something happens to your first nomination
Generally speaking, the Power of Attorney document becomes valid once registered with the Office of the Public Guardian. Your solicitor will be able to arrange this for you.
For Welfare Attorneys, their appointment only comes into effect on the loss of mental capacity.
For Continuing Attorneys, their appointment can become effective immediately on registration. In practice, this is normally quite convenient if a granter has mobility issues, for example. However, if you feel uncomfortable with this arrangement, additional wording can be included in the Power of Attorney to avoid this.
You can revoke a Power of Attorney at any time whilst you still retain mental capacity. You can also amend the deed at a later date if you wish.
The Power of Attorney document will only expire on your death, or if you choose to revoke it before then.
The standard cost for a single Power of Attorney is £395 + VAT, or £645 + VAT for a couple. There is also a registration cost to register the deed(s) with the Public Guardian. Read more about the costs for a Power of Attorney over on our Costs page.
A Living Will (also known as an Advanced Medical Directive) is a separate document which you may also put in place. This is primarily focused on your wishes for medical interventions in certain circumstances (e.g. CPR, ventilation, artificial feeding etc).
This document is not legally binding, but may be used to assist a Welfare Attorney in carrying out their duties.
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