The importance of Power of Attorney

SFE’s 2020 research revealed that 75% of people aged 40+ do not have a Power of Attorney in place. If you are one of these people read on to find out how you may be risking unnecessary expense, time and stress for you and your family.

What is a Power of Attorney?

A Power of Attorney (‘PoA’) is a document in which you (the ‘donor’) give powers to chosen individuals (the ’Attorneys’) to make decisions for the donor should they lose the capacity to do so. There is no limit to the number of attorneys the donor can appoint but between 2 and 4 are recommended. Creating a Power of Attorney offers certainty, security and cost-effective protection. There are two different types;

Lasting Power of Attorney for Property and Finance: This type of PoA gives authority to the donors chosen Attorney(s) to manage their financial affairs, including their property, bank accounts and any physical assets they may be in possession of. This means that should the donor lose capacity and be required to go into care, their Attorney(s) can manage their bank accounts and even sell their property should this become necessary. The donor can also decide if this PoA can be used before they lose capacity. This means, for example, should the donor be physically impaired and unable to go to their local bank they can send their Attorney(s) in their place.

Lasting Power of Attorney for Health and Welfare: This type of PoA gives authority to the donors chosen Attorney(s) to make decisions of a more personal nature. This includes daily routine (washing, dressing, eating), medical care, where the donor lives. The donor can also decide whether to grant authority to their Attorney(s) to make decisions regarding life sustaining treatment. This PoA can only be used once the donor has lost capacity.

Consequences of having no PoA

If the donor loses capacity without a PoA in place then their family cannot apply for one on their behalf. This may leave the donors family with no choice but to pursue the Court of Protection (‘CoP’) route in order to get authority to act on the donors behalf. This is called a ‘Deputyship order’. But why is this best avoided?

The CoP route is a necessary last resort if no prior measures have been taken and the donor has not appointed any attorneys prior to losing capacity.

A CoP application for a Deputyship Order is over four times as expensive as a PoA application and is a complicated and long-winded process which can be very stressful without the skill and knowledge necessary to navigate it.

The wait time for a CoP application with the government can be over a year, this is a significant period of time to wait before the donors family can manage the donors affairs should they lose capacity suddenly. By comparison a PoA application takes up to 20 weeks and once completed can be used immediately upon the donor losing capacity.

Why seek professional legal assistance?

A 2020 Freedom of Information request from consumer champion ‘Which?’ showed that 22,000 Lasting Powers of Attorney a year are rejected by the Office of the Public Guardian (‘OPG’).  This means that 22,000 donors waited up to 20 weeks in order to discover they had applied for a PoA incorrectly and had to start over. If the donor in question loses capacity during this wait time, they have lost the opportunity to create a PoA and their family will instead have to pursue a Deputyship Order.

Be confident in your PoA application by seeking out a solicitor who specialises in this field. A solicitor will prepare the document for signature and explain in detail the steps required for registration. This will guarantee you peace of mind and ensure that you are looked after by people of your choice should you lose capacity for any reason. LCF offer fair, fixed fee prices so that you can be sure of the costs from the start.

What can we do to help?

The Personal Law Team advises on all aspects of the full range of personal law issues for individuals and families. Whether that be; preparing Powers of Attorney, assisting with a Deputyship Application, drafting Trust documents, drafting Wills, inheritance tax planning or assisting with Probate.

If you are thinking about creating a Power of Attorney or require any advice on any other personal law issues, please contact either Ann Christian on 01943 885 782 or ku.oc1714728295.fcl@1714728295naits1714728295irhca1714728295 or Haroon Qayum on 01423 851 139 or ku.oc1714728295.fcl@1714728295muyaq1714728295.noor1714728295ah1714728295 for more details.

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