A Power of Attorney gives you a voice when yours can no longer be heard. Without having a Power of Attorney, your finances and your health and welfare are left in the hands of the government and medical professionals, who will decide what will happen to you in accordance with legislation. Medical professionals will move you to where they believe you can get the best medical help and your finances and property are left open to attack to pay for your care.
There are two different types of Powers of Attorney. One will give your chosen Attorney(s) the ability to access your property and finances. The other will give your chosen Attorney(s) the power to have a voice in matters of your health and welfare. Having both LPAs in place will allow your Attorneys to have a say in what happens to you and your estate.
Let’s take a moment to understand what LPAs actually are. A Power of Attorney is a legal document that allows the people that you have chosen as Attorneys to act on your behalf if anything happens to you that leaves you unable to carry out various responsibilities. But the authority comes with its own duties and responsibilities. The appointed Attorneys will have both a legal duty to the principles and the duties granted by the Power of Attorney document.
As the Donor, you appoint a person or persons the power to act on your behalf. Remember, as long as you still have capacity you have the authority to revoke your LPA at any time. Appointing an Attorney does not mean they can immediately start accessing your bank accounts. They will be able to do that only when you no longer have capacity, or you have given your consent.
What Happens if you don’t register a Power of Attorney?
It will not be recognised and your Attorney(s) will not be able to act on your behalf.
Can the terms of a Lasting Power of Attorney be changed or cancelled?
No – you will need to revoke your old Power of Attorney and replace it with a new one. Some of the reasons that donors wish to change the terms of an LPA include if they no longer want someone to be their Attorney or if they wish to add one or more extra Attorneys. They may also have stated that they require all the Attorneys to agree before they act on their behalf, but then they changed their mind, deciding that they need to agree on certain topics only.
When does a person lack ‘mental capacity’?
The Mental Capacity Act 2005 covers people in England and Wales who can’t make some or all decisions for themselves. The ability to make and understand a decision when it needs to be made is called ‘mental capacity’.
How many Attorneys do I need?
Here at LR Estate Planning we advise that you have at least two or three Attorneys to make sure they make the best decisions for you in the future. It also means the Attorneys can divide up the responsibilities – they may have a number of tasks, such as paperwork, medical arrangements and looking after your financial matters. Having more than one Attorney will provide them all with a support network at a time that could be distressing for them.
I already have an Advance Directive (‘Living Will’) What should I do:
Your Living Will is an expression of your wishes about what you would like to happen in a given situation, such as if you become terminally ill. Make sure that your attorney knows where your living will be kept and make sure they have access to it. The advance Directive has been written for them as well as medical professionals, to give them guidance on their wishes.
Can my Attorney do whatever they like?
No, they will be obliged to act according to the wishes that you have expressed. It is also preferable to have more than one Attorney in this situation, as a safeguard that they will act with best intentions towards you.
Who can be my Certificate Provider?
The Certificate Provider must be a professional person who has known you for more than two years.
I have an adult child with learning difficulties – can I act as his Attorney?
Assuming that your child has mental capacity and wants you to act on his behalf if anything was to happen to him then, yes, he can appoint you as his Attorney. But this must be his decision – you cannot simply apply to be his Attorney without his consent. Talk to an LR Estate Planning Adviser to get a better understanding of the process – this may vary, depending on where you live.
I have two children and two stepchildren – can they all be my Attorneys? If so, in making decisions on my behalf would my biological children have more power than the stepchildren?
All the children can be your Attorneys. Regarding the ‘balance of power’, when you are writing your LPA, your Estate Planner will ask you how you wish your appointed Attorneys to act. To help you make the best decision for you, our Adviser will then explain to you how the process works and the different consequences of what you put in your LPA.
What happens if I lose the ability to make decisions but I haven’t made a Lasting Power of Attorney?
If you lose capacity and don’t have an Attorney in place then you will be in the hands of the government and medical professionals, who will work to a code of conduct to ensure you are cared for. Your family and loved ones will not have a say in how you are looked after or where you can be moved for treatment. Your estate will be charged for the cost of your care.
What happens if my Attorney dies before me?
You must make a new Lasting Power of Attorney and choose a new Attorney. But you can only do this if you still have capacity. If you have lost capacity and your Attorney dies then you will no longer be allowed to appoint a new Attorney and your LPA will become invalid. This is why it is important to appoint a reserve Attorney, in case your Attorney dies before you or chooses to step down.
I am an Attorney and I no longer want the responsibility.
You can choose to stop acting as an Attorney at any time. If the LPA has been registered then you will need to complete the form ‘Disclaimer by a proposed or acting attorney under a lasting power of attorney (LPA005)’ (applies to England and Wales – there are different arrangements for Northern Ireland and Scotland. You must send the completed form to the Office of the Public Guardian. If you do not do so, the form can’t be registered and you will continue to be an Attorney.
Can a doctor overrule my Attorney’s decisions?
A doctor can overrule your Attorney’s decisions if they don’t feel that the attorney is acting in the best interest of the donor. Often the reason for a doctor to overrule an attorney is if the attorney hasn’t been given the right to decide in this particular instance. Or if the donor has left a living will (advance decoration) and the attorney is going against the wishes of the donor.
Can my Attorney influence my Executor after I have passed away?
An Attorney has no power or influence over the Executor. The Attorney is someone who has been appointed when you are alive to act on your behalf. The Executor handles the estate’s affairs after your death. You can appoint the same person to both roles if you wish.
Must the donor be present when the certificate issuer witnesses and certifies the LPA?
There is no requirement for the donor to be present when the certificate issuer witnesses and certifies the LPA. However, some certificate issuers may prefer the donor to be there – check with the certificate issuer beforehand.