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There are two types of Lasting Power of Attorney, one which allows an attorney(s), appointed by you, to deal with your financial affairs on your behalf and another which allows your attorney(s) to make decisions about your medical care or living arrangements. The idea is that you appoint attorneys now and give them directions as to how they should handle your affairs if you are unable to do so later.
Many of you will be aware that Powers of Attorney are often used by relatives when a person loses mental capacity. This could be following a stroke or vascular dementia. But have you ever given any thought as to just how this is possible?
The answer is that the donor/patient planned ahead. Most people have no idea whether they are going to lose mental capacity. It is a little bit like insuring your home. There may or may not be flooding or theft. But if there is, and you are insured, you know that your insurer will look after you. In the same way that you would not risk leaving your home uninsured, Emmersons Solicitors Lasting Power of Attorney clients would not risk a situation where there was no one able to manage their affairs if they could not do so themselves.
Many of our clients attend to a number of issues at once. They make their wills, (they may make lifetime gifts at the same time), organise how their home is owned, arrange for the storage of their important documents and attend to a Lasting Power of Attorney. Usually this will involve two visits to our office. However, once dealt with our clients often comment that they are relieved that they have planned ahead and sorted out their affairs.
What Are The Likely Consequences Of Not Making A Power Of Attorney?
Let’s imagine that your father lives alone, he owns his own home and all of his investments and bank accounts are in his sole name. Now imagine that he has a stroke and loses mental capacity. You set about trying to work out where he is going to live. You may determine that he is going to live with you. You decide that as he will not be able to live in his own home again it should be sold. Or it may be necessary for your father to move into a residential care setting. therefore, someone has to authorise payments from your father’s bank accounts to a care home. Without a Lasting Power of Attorney you cannot do this.
In order for your father’s home to be sold someone has to be able to instruct estate agents and solicitors. They will have to sign the necessary legal documents. You are not an owner of your father’s home and therefore you cannot sell his home. Your father no longer has mental capacity so he cannot sign the legal documents which would enable the sale to take place.
Had your father appointed you as his Attorney, then under the circumstances you would now be able to step in and deal with sale of his home as well as the receipt of and investment of the sale proceeds. You would also be able to run his bank accounts and thus pay for his care home fees.
All is not lost however. You could still apply to The Court of Protection to become your father’s deputy. A deputy is a person appointed by the court to manage the affairs of a person who is, because of mental incapacity, unable to do so for themselves. This will take a number of months to achieve and you must prove to the court that you are a suitable person to take over your father’s affairs. It requires the completion of some rather lengthy forms including details about your own finances. It is also necessary to prove to the court that your father has lost mental capacity. At Emmersons Solicitors, we are frequently called upon to make such applications by people in your situation. Once Deputyship is granted there is also annual insurance to pay and at any time in the future you may have to be interviewed by a Visitor appointed by the Court of Protection. Their role is to investigate how you are managing your father’s monetary affairs.
Ultimately however, the court may determine that you are not a suitable person. At Emmersons Solicitors we have had a couple of cases recently where the court have determined that the local authority should take over instead of relatives. How would your father feel about that?
In short, the point of a Lasting Power of Attorney is to enable your relatives or friends to help you run your affairs if you are unable to do so. You will have peace of mind knowing that you have appointed people you trust. They will not have the added stress of dealing with the Court of Protection at a time when they are trying to help you with your care and housing needs. They will not have to worry about being interviewed by a Court of Protection Visitor.
If you expect your relatives or friends to look out for you in your hour of need then you should make this as easy as possible for them. Act now in order to help them help you.
Author: Jacqueline Emmerson