When Should You Make A Lasting Power Of Attorney?
Posted on 29th July 2020
You may or may not have heard the term “Lasting Powers of Attorney” before. Perhaps you have heard a friend or relative discuss putting in place the documents, or maybe you have seen one of our very own Lasting Powers of Attorney Solicitors’ articles discussing various different aspects of the documents. You may have been asked whether you want to consider putting the documents in place yourself. At the time, you may have thought that you were too young to need them, or that – when the time comes that you do need them – you will have plenty of time to sort them out. Sadly, this is not always the case. In today’s article, our expect Lasting Power of Attorney Solicitors are going to discuss why everyone should consider making a Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that grants the people named - your Attorneys - the legal power to make Health and Care decisions on your behalf, or to deal with your financial requirements either at your direction or, if you have lost capacity, on your behalf.
A Lasting Power of Attorney could be used temporarily, for example, if you are going into hospital or abroad and need help with everyday tasks whilst you are away. They can also be used in the long term, too, such as if you have been diagnosed with dementia, you may lose capacity in the future to make your own decisions.
What is capacity?
Quite often, our Lasting Power of Attorney clients will refer to losing their capacity as they age, and then no longer being mentally capable of making decisions for themselves. Why this can be the case in some older people, anyone can lose capacity at any age. To have mental capacity, you must be able to understand the decision that you need to make, why you are making it (or why you need to make it), and what the anticipated outcome of your decision will be.
In some cases, a person will have capacity to make decisions about some things but not others. So, they may be able to make decisions about what they would like to eat for their next meal or the outfit that they want to wear, but they may not be able to comprehend their home insurance. With some people, their ability to make decisions and understand enough to make a Lasting Power of Attorney could change daily.
Our Lasting Powers of Attorney Solicitors would point out that if a person takes longer to understand what is being asked of them or what decision they need to make, this does not necessarily mean that they are unable to make decisions for themselves or that they lack capacity. Whenever a person is struggling to understand a decision being made, an attempt should be made to overcome any difficulties and help the person to decides themselves. If this is not at all possible and they do not already have a Lasting Power of Attorney, it may be necessary to look at making an application to the Court of Protection.
What types of Lasting Powers of Attorney are there?
There are now three types: an ordinary power of attorney, a financial decisions Lasting Power of Attorney and a Health and Care decisions Lasting Power of Attorney. Previously, a person could complete an Enduring Power of Attorney, however, these were replaced by Lasting Powers of Attorney in October 2007 If you have an Enduring Power of Attorney and you are wondering whether to change it to a Lasting Power of Attorney, find out more information in our Lasting Power of Attorney Solicitors’ article, here.
In short, an Ordinary Power of Attorney covers decisions about your financial affairs only and remains valid whilst you have capacity. Generally, this is suitable for temporary cover, such as a holiday or short hospital stay. On the other hand, once registered, Lasting Powers of Attorney can be set up to cover either Financial Decisions, Health and Care decisions, or both. The Financial Decisions document can be used before and/or if you lose capacity, whereas a Health Lasting Power of Attorney can only be used if you no longer have capacity.
When should I make Lasting Powers of Attorney?
It can be tempting to fall into the trap of believing that you are “too young” or saying “I don’t need one”. Sometimes in life the unexpected can happen and, therefore, you are not too young to consider making Lasting Powers of Attorney, providing that you are over the age of 18 and have mental capacity.
For example, you could be completely healthy and going about your day-to-day life when you are caught up in a horrific accident. This may leave you temporarily or permanently without sufficient capacity to make decisions yourself. No matter what age you are, the people that you would want to be able to make decisions for you may not be able to, if you do not have the right legal documents in place: Lasting Powers of Attorney.
For this reason, among others, our Lasting Powers of Attorney Solicitors discuss making Lasting Powers of Attorney with all of our Wills clients. If they feel that they do not want to make them at this time, then that is not a problem, however, we make our clients aware that, if they want to discuss it in the future, we are here to help.
The process can seem daunting when looking at making Lasting Powers of Attorney, however, with the guidance of our expert team, it is much more seamless and stress-free than you might think. Our team have drafted Lasting Powers of Attorney for hundreds of clients, so we know what sort of things should be included in the documents.
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