Power of Attorney

Power of Attorney

Putting a power of attorney in place now can give you reassurance that someone you have chosen and trust is on standby. A lasting power of attorney is a legal document whereby one person grants another person the authority to make legal and financial decisions on their behalf.

Should you ever be unable to make decisions for yourself, following an accident or illness for example or because you are out of the country, it can be very costly and lengthy for other family members to apply to the Court of Protection to have a deputy appointed to look after your daily affairs.

You may have assumed that your spouse or partner will be able to take care of things, but this is not the case. Therefore, it makes sense to arrange for a lasting power of attorney to make decisions on your behalf or to help you make decisions if the need ever arises. Many people put these documents in place at the same time as making a will.

Types of lasting powers of attorney

  1. A lasting power of attorney for financial decisions can be used to allow someone to make decisions for you even while you still have mental capacity. These decisions may include things like buying and selling property, investing money and paying bills.
  2. A lasting power of attorney for health is different in that it only comes into effect if you have lost the capacity to make decisions for yourself. It will allow someone you trust to make decisions such as where you live, your medical care, what you eat and what kind of activities you should take part in.

How to make a lasting power of attorney

  • You must be at least 18 years old
  • You must have the mental capacity to make the power of attorney
  • Choose your attorney (friend, relative etc)
  • Fill in the necessary paper work
  • Ensure forms are signed and witnessed
  • Register the document with the Office of the Public Guardian

Choosing an attorney

Provided they are at least 18 years, you can choose anyone you trust to be an attorney, for example, your spouse, child, friend, or solicitor. It is a good idea to let them know you are considering them as they may want to think about it before accepting such a responsible role.

While your attorney will be entitled to claim expenses, it is an unpaid role. If you decide to appoint more than one attorney, you should specify whether they are to act jointly or severally or outline precisely the decisions that each should be responsible for. Should your attorney predecease you the power of attorney will automatically come to an end.

Role of the attorney

Attorneys must act in your best interests at all times when making decisions on your behalf. They must consider all the options and choose the one that is least restrictive on your rights and freedoms. They should encourage you to participate as much as possible, considering your wishes and previous decisions, taking into account your beliefs and values, and discussing matters with others who know you well.

What happens if you do not have a power of attorney?

Should you become incapacitated for any reason, temporarily or permanently, without having a power of attorney organised, the Court of Protection will choose an appropriate attorney to make decisions on your behalf. It will not necessarily be a spouse, partner, or family member.

Remember, a lasting power of attorney is only valid if you have not been put under pressure to create it, and if you have the mental capacity to understand its implications. We can explain the nature and effect of a lasting power of attorney and help you prepare documents that are appropriate for your individual circumstances.

If you need any assistance, contact one of our lawyers at [email protected] or call (023) 9225 9822 for expert legal advice