What is a Lasting Power of Attorney (England and Wales)?
A Lasting Power of Attorney is a legal document that you make when you have mental capacity. It allows you to choose other people who you want to make decisions on your behalf when you choose not to or are unable to make decisions; and to help you when you lack mental capacity to make decisions yourself. There are two types of Lasting Power of Attorney, each document is individual:
- Property and Financial Affairs: this document allows your attorney to make decisions about the day to day things such as paying bills, dealing with the bank, collecting benefits etc, and the big decisions like selling your house, making investments etc.
- Health and Welfare: this document allows your attorney to make decisions about your treatment, care, medication, where you live etc. It also allows you to choose in advance if you would like your attorney to be involved in the decision making process regarding life sustaining treatment.
When can a Lasting Power of Attorney be used?
A Lasting Power of Attorney has to be registered with the Office of the Public Guardian before it can be used. The registration process is your safeguard to ensure the document is sound and workable.
- Property and Financial Affairs: can be used immediately after registration if you so choose. This will enable your attorney(s) to support you by working with you following your instructions, whilst you retain mental capacity but when you may chose not to or are unable to make decisions for yourself due to travel, distance, mental ill health, physical injury or degenerative disease etc. These documents can continue to be used to help you if you loose mental capacity.
- Health and Welfare: can only be used once you have lost mental capacity.
Can I wait to register my Lasting Power of Attorney?
When to register your Lasting Power of Attorney is a matter of personal choice. Allied Services Trust recommends that you register your Lasting Power of Attorney immediately. This is because the document has to pass scrutiny during the registration process with the Office of the Public Guardian. If the document is rejected a resubmission will be needed. If you have mental capacity you have the opportunity to resubmit. However if you leave the Lasting Power of Attorney unregistered until you have lost mental capacity and at the point of registration it fails, you have lost the opportunity of having a registered and valid Lasting Power of Attorney in place to help you. The resulting action is likely to be application to the Court of Protection for a Deputy to be appointed which incurs significant on going costs.
What stops Attorney(s) getting involved before they are needed?
If you are concerned about a Property and Financial Affairs Lasting Power of Attorney being used before you want it to be, for example you do not want help from your attorney until you have lost mental capacity, you have the ability to place a restriction within the document stating your instruction.
How can I tell my attorney(s) what I want them to do?
Within both the Property and Financial Affairs and Health and Welfare Lasting Power of Attorney you have opportunity to place restrictions and conditions that are legally binding. This means that your attorney(s) have to do what you say in the Lasting Power of Attorney. You can also place guidance notes regarding things that you would like or not like to happen. It is important to remember that restrictions, conditions and guidance notes need to be workable.
What happens if I change my mind or my circumstances change?
If you change your mind and no longer want a Lasting Power of Attorney as long as you have mental capacity you can cancel the document. If your circumstances change and your Lasting Power of Attorney will no longer work how you would like it to, as long as you have mental capacity you can cancel the existing Lasting Power of Attorney and make a new one. A review of your Lasting Power of Attorney should be considered on a regular basis.
What happens if I get divorced?
If you have appointed your husband, wife or partner as your attorney, and there has been dissolution or annulment of the marriage or civil partnership they will no longer be able to act as your attorney unless you have stated in the Lasting Power of Attorney that you want them to continue in this role.