Managing your future
Every adult has the right to manage his or her own money and affairs. Sometimes, however, our ability to do this decreases as we grow older. Whether this is caused by illness, disability, or an accident, there are a number of practical steps you can take to prepare for this.
If this describes your situation, or that of someone close to you, you should consider getting legal advice. A solicitor can help by encouraging you to get your affairs in order and make your wishes for the future known. This may involve choosing someone to take power of attorney (legal authority to act for you) over your financial affairs, if this is necessary.
This can lighten the burden on relatives or carers who might otherwise find it difficult to make complicated decisions on your behalf.
An ordinary power of attorney
This is a legal way of giving someone else the power to manage your financial affairs when it is difficult for you to manage them yourself, perhaps because of a physical disability. Usually you appoint someone you trust, such as a close relative, friend, or solicitor as your ‘attorney’. Nobody can simply ‘take’ a power of attorney. You have to ‘donate’ it willingly. The donor decides who to appoint as attorney, and can cancel the arrangement at any time.
Power of attorney only applies if you are fully aware of the implications of the arrangement. The power of attorney will come to an end if you become mentally incapable of managing your financial affairs.
Lasting power of attorney
A lasting power of attorney goes one step further than an ordinary power of attorney, because it carries on, or ‘lasts’, even after you have become unable to manage your affairs – whether temporarily or permanently, or because of an illness, disability or accident. Lasting powers of attorney have now replaced enduring powers of attorney, although valid enduring powers of attorney made before 1 October 2007 can still be used. No new enduring powers of attorney can be made after 1 October 2007.
For a lasting power of attorney to be valid, you must fully understand the implications of the arrangement at the time of making it. A certificate provider will need to sign a certificate to say that you are aware of the implications and that nobody is pressurising you into making a lasting power of attorney. (A certificate provider is someone who has known you for at least two years, or someone with specialist skills in to enable them to confirm a person understands the significance of the lasting power of attorney.) The attorney must be at least 18 years old and must not be bankrupt if appointed to make decisions about a person’s property and money. More than one attorney can be appointed at the same time.
Your attorney cannot start making decisions on your behalf until the lasting power of attorney has been registered by the Office of the Public Guardian, who will make sure your attorney is aware of his or her duty to act in your best interests. The Office of the Public Guardian will charge a fee for registering the lasting power of attorney.
There are two types of lasting powers of attorney:
- Health and welfare lasting power of attorney; and
- Property and financial affairs lasting power of attorney.
Health and welfare lasting power of attorney
A health and welfare lasting power of attorney can be made to give your attorney the right to make personal welfare and medical treatment decisions on your behalf if at some time in the future you are unable to make those decisions yourself. A health and welfare lasting power of attorney can only be used when it has been registered and the donor has lost capacity (the ability to handle their own affairs).
Property and financial affairs lasting power of attorney
A property and financial affairs lasting power of attorney can be made to give your attorney the right to make financial decisions, such as managing your bank account. Once registered, a property and financial affairs lasting power of attorney can be used while the donor still has capacity, unless the lasting power of attorney specifies otherwise.
Consulting a solicitor is the best way to make sure a lasting power of attorney is properly set up and registered, and that it is in the best interests of the donor.
Brewer Wallace are specialist legal professionals who have many years experience in this area of work.
Please give us a call on 01482 221130 or 01924 537856 for a free, no obligation, quote.