The object of a Power of Attorney is to enable someone else to manage your affairs and sign documents for you in the event that you were not able to do so or were unavailable. There are several different types of Power of Attorney as described below. A General Power of Attorney can relate to all your own property and assets. There are also other types of Power of Attorney which are to be used only for a particular property or for a specified function. None of the above Powers of Attorney can be used if you become mentally incapacitated. A Lasting Power of Attorney is intended to continue to be useable even if you were to become mentally incapacitated. It is important to consider making this type of power so as to have someone to look after your affairs, if perhaps you are becoming elderly or infirm. For example, if at some time you were to have the misfortune to become infirm, perhaps suffering a stroke or other illness, you might no longer be able to sign documents or to deal with your own affairs. This would make it difficult for your financial matters to be looked after properly: investments might be neglected, bills left unpaid and monies due to you uncollected. If you have not made a Lasting Power of Attorney, the only way in which matters can be dealt with is for someone to make an application to the Court of Protection for appropriate orders and directions. Inevitably, this results in a degree of expense especially as the fees of the Court are substantial and it might be necessary to return to the Court for further orders during the course of administering your affairs.

The way to avoid the problems outlined is to make a LASTING POWER OF ATTORNEY (PROPERTY AND AFFAIRS) by which you appoint trusted and responsible persons to look after all your financial and property affairs in the event that you become unable to attend to them yourself.

Obviously, any Power of Attorney needs to be completed whilst you are still physically and mentally able to execute it. This means that you need to plan ahead and make arrangements for the Power of Attorney some time beforehand and before some unexpected accident or ill health creates a difficulty for you.

Making any Power of Attorney and especially a Lasting Power of Attorney is an important matter and you need to be sure that the person you select to act for you is someone you can rely on. A trusted close relation may often be the best choice. Also more than one person can be appointed, and this may generally be desirable in case a single person selected was not able or available to act when needed.

A Lasting Power of Attorney cannot be used until it has been registered, and as you may not wish it to be registered immediately, or to incur the registration fees of the Office of the Public Guardian, you may wish to consider delaying registration. Also, you could impose a condition on the appointed person only to register the power when necessary. Any such condition will mean the power cannot be registered until the condition is met, and will mean that the power would not be useable immediately when it is needed.

Moreover, a Power of Attorney does not have to be used until it is necessary and you can give instructions that it is only to be used when and if that situation should arise. Also, you can revoke a Power of Attorney at any time provided that you still have the necessary capacity to do so, even in the case of a Lasting Power of Attorney, after it has been registered.

You may also wish to make advance provisions and declarations as to your wishes concerning your personal welfare; for example, as to where you would wish to live and as to future medical treatment in case you should become unable one day to make decisions as to these matters yourself.

You can do this by means of a Lasting Power of Attorney (Personal Welfare). Under this form of power you appoint a person or persons to make the necessary decisions for you and also give them such powers as you desire, either to give or refuse consent to various types of medical treatment. In the same document you can include conditions or guidance to assist your attorney in making decisions concerning treatment and general welfare in the future.

A Living Will is a form of declaration as to how you would desire to be treated and cared for in the event that you become infirm and are no longer able to express your own wishes. It can include your decision as to medical matters and the circumstances in which you would not want to have life-saving treatments.

A Living Will may appear to cover the same ground as a Personal Welfare Power of Attorney but there are important differences.

A Living Will is an advance decision by you so that your next of kin and those who look after you know what your views are. It may be inadequate because you may not have allowed for every eventuality.

No one is appointed in a Living Will and it does not have to be registered with the Court of Protection.

A Personal Welfare Power of Attorney appoints a named person and gives them authority to make decisions for you; although it would usually give them guidelines as to how you wish to be looked after and what treatments you would or would not want to receive. It is therefore a wider document, but it would have to be registered with the Court of Protection before the appointed persons could act. It would therefore be advisable generally to have a Living Will as well as a Personal Welfare Power of Attorney. Either can be revoked at any time as long as you still have the necessary capacity.

Neither a Living Will nor a Personal Welfare LPA comes into effect until you are unable to act for yourself.

If you need to look after the affairs of someone who has not made a Power of Attorney and who is no longer able to do so, it will be necessary for an application to be made to the court for an order giving you authority to act. Please let us know if this arises and we will advise you further and deal with the court application on your behalf.

For more information about Powers of Attorney and Living Wills and as to how to proceed, please contact us. We will give you advice and assistance and prepare the necessary documents. Also, if you would just like to have an informal discussion to consider what might be best, please contact us.