It is important to consider what would happen in the future if you no longer had the mental capacity or physical ability to look after your own affairs.

We would, of course, all like to retain full control for the entirety of our life if this were possible.  It is, however, prudent to consider all of the possibilities that the future holds and by entering into a Lasting Power of Attorney it will allow you to have a say in all decision making powers to be made in the future if you were not able to make the decision for yourself.

TYPES OF LASTING POWERS OF ATTORNEY

As from the 1st October 2007, two separate Lasting Powers of Attorney have come into being:

Lasting Power of Attorney for Property and Financial Affairs

This allows you to nominate a person or persons (known as Attorneys) whilst you are fit and healthy that will assist with the management of your financial affairs if the situation ever arose that you are not able to look after them yourself whether this is due to a physical or mental incapacity.  It will allow the person or persons of your choosing to undertake such tasks as collecting your Pension, paying bills, dealing with your Bank or Building Society Account, completing your Tax Return or buying or selling property.

Lasting Power of Attorney for Health & Welfare

As with the previous Lasting Power of Attorney, this allows you to appoint an Attorney or Attorneys to assist you in any care or health decisions that may be needed to be made in the future.  This Lasting Power of Attorney will only come into operation if you do not have the specific mental capacity to make the decisions regarding your own care.  It will allow your Attorneys to direct where you should be cared for and how and it gives your Attorneys the authority to consent or refuse life sustaining treatment on your behalf if you so direct.

It is a popular misconception that your spouse or civil partner will be able to assist you with your financial affairs by way of their position as your spouse or civil partner.  This is not the case.  Your spouse or civil partner will only be able to gain access to your Bank or Building Society Account in order to pay bills etc if this is a Joint Account.  Any Accounts or investments that are in your sole name would need a Court Order from the Court of Protection to allow your spouse or children to gain access to them.

It is important to remember that you stay in control of all decisions, whether financial or personal, even after the Lasting Power of Attorney has been made.  You control when your Lasting Power of Attorney for Property and Affairs can come into effect and, whilst you have capacity to do so, you would direct your Attorneys as to your wishes.  It is important to try and avoid an application to the Court of Protection.  You can do this by having a Lasting Power of Attorney in place.  If there is no Lasting Power of Attorney in place and you become unable to manage your affairs due to either a physical or mental incapacity then the application to the Court of Protection is a lengthy and costly process.  In addition to this, a Deputy could be appointed which may not necessary have been a Deputy of your choice.  There is an ongoing obligation on the Deputy to account to the Court of Protection on an annual basis and they also need to seek authority from the Court of Protection on many decisions that they may wish to make on your behalf.

MKB Solicitors LLP would be happy to discuss the best course of action for you as an individual person.  It may be that you would like to enter into a Lasting Power of Attorney for Property & Affairs but not for Health & Welfare and vice versa.  Every individual circumstances are different and we would be able to advise you on an individual basis and draw up the appropriate Lasting Power of Attorney(s) for you.

Louise Moran

MKB Solicitors LLP

October 2011