None of us like to think of a time when we won’t be able to deal with things ourselves yet we will all have come across people who can no longer do so, either as a result of an illness or an accident. These things don’t just happen to the elderly but can happen to us at any stage of life.
If the unthinkable happens – planning ahead
If you are injured in an accident or suffer an illness which renders you unable to deal with your affairs, then someone else would need to do so and this raises a number of questions:
- Who would you want to deal with things?
- Would they know what your wishes are?
- Would they know what assets you have? Would your bank talk to them?
- Would they know what to do? Or even where to start?
Having a family member or close friend suffer an illness or accident is very upsetting and not knowing what to do often can cause further anxiety for loved ones.
Creating a Power of Attorney
The best way to protect against this is to be prepared by creating and having a Power of Attorney in place. Since October 2007, you can only create a Lasting Power of Attorney, however, any existing Enduring Powers of Attorney are still valid.
There are two types of Lasting Power of Attorney:
- Health and welfare
- Property and financial
A Power of Attorney is a legal document you complete whilst you still have capacity and appoints people that you trust (be that a friend, relative or professional) to look after your affairs if you ever lose capacity. These people are known as your Attorneys.
Appointing an Attorney
Making an Lasting Power of Attorney does not mean that you are giving up control, as the Lasting Power of Attorney will have to be registered with the Office of the Public Guardian before it can be used. Even after registration, your Attorneys cannot make decisions for you if you have the capacity to make these for yourself unless you wish them to.
When choosing an Attorney, you should think about:
- How well they look after their own affairs, e.g. their finances
- How well you know them
- If you trust them to make decisions in your best interests
- Will they be happy in making decisions for you
Your Attorney is required to act in good faith and to take decisions in your best interests
Important things to take into account
The key thing to remember is that you can only set up a Lasting Power of Attorney when you have mental capacity. Once you have lost capacity, it’s too late and your loved ones will need then to apply through the Courts to become a Deputy, which is a far longer and more expensive process.
In our experience no one appreciates the importance of Power of Attorneys until they have had to deal with the affairs of someone who has lost capacity. We would encourage everyone to create a Power of Attorney straight away and then to review it every few years to make sure that they are happy with who they have appointed as their Attorneys.
How Nelsons can help
Jane Sutherland is a Partner in our Wills, Trusts & Probate team.
If you would like to create a Power of Attorney or if you would like any further information, please contact a member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.