This week Emma Edwards discusses Lasting Powers of Attorney. Emma the newest member of the Progression team having joined us in August 2012.
Emma is a solicitor who specialises in Lasting Powers of Attorney, wills, trusts, Inheritance Tax advice, probate and more. She is also a member of the Society of Trust and Estates Practitioners
What is a Lasting Power of Attorney?
Every adult individual has the absolute legal right to make their own decisions about their property and finances and about their own health and welfare, so long as they have the necessary mental capacity to do so.
Sometimes mental capacity to make decisions can be lost because of illness, disability or accident or simply because increasing old age makes it harder for the individual to make decisions for himself or herself. People who suffer from dementia or stroke for example, may lose their ability to make decisions about their money and property and also to make decisions about what medical treatment they wish to receive or where they will live.
Where an individual loses the ability to make decisions about either their property and finances or their health and welfare this can cause great difficulties for their family or the carers who have to look after them. This is because unfortunately, there is no legally recognised concept of “next of kin” and being a person’s closest relative or spouse does not confer any automatic legal right to make decisions about that person’s health and welfare or their money and property.
These days many people hold assets such as bank accounts, investments and property in their sole name for many reasons, even if they are married. If such a person loses his or her mental capacity then their spouse has no automatic legal authority over those assets. By way of a simple example, if a husband has his pension paid directly into a bank account in his sole name and loses mental capacity, his wife, who may rely on the pension to pay the bills, cannot gain access to the bank account just by virtue of being a spouse.
It is possible to make legal arrangements in advance to cover the possibility of this situation arising. An individual may make a Lasting Power of Attorney (LPA) appointing another person or persons to make decisions on their behalf in relation to either their property and financial affairs, or their health and welfare or both. The LPA will be valid as soon as it has been formally registered and will remain valid if or when the person giving the LPA later loses his or her mental capacity. The person making the LPA may choose the people who will look after their money and property or who will make health and welfare decisions for them if they become unable to make their own decisions in the future.
It is permissible to make an LPA just dealing with property and financial affairs or one just dealing with health and welfare, or to do both. If you decide to do both you may appoint the same person or people to be attorneys for both documents, or to appoint different people in each case.
If a person loses mental capacity without an LPA in place it is necessary to make an application to the Court of Protection for someone to be given formal legal authority to deal with that person’s property or to make health and welfare decisions. Unfortunately, the costs of a court application are not cheap, certainly compared to the cost of drawing up an LPA while you still have mental capacity.
If you would like any further information about any of the topics mentioned above or any other private client matters please contact Pamela Horobin.
Progression Solicitors give advice on wills, trusts, powers of attorney, Court of Protection applications, inheritance tax, elderly client advice and care home fees to clients in Ulverston, Barrow-in-Furness, Dalton-in-Furness, Grange-over-Sands, Windermere, Ambleside and throughout South Furness and South Cumbria.
Progression Solicitors can give advice to private clients at our Windermere office at 5 Crescent Road, Windermere and our Ulverston office at 11 Queen Street, Ulverston. If you would like to obtain a copy of our lasting powers of attorney advice brochure, or to make an appointment please telephone 01229 580956 for Ulverston and 015394 42255 for Windermere.
Whilst we have made every effort to ensure the accuracy of the information given in this information sheet, this information is provided for general information purposes only and no warranty or representation is made as that the information is completely free from errors or inaccuracies. Specific legal advice on this topic will vary according to individual circumstances and should be sought in every case. Any advice given in this sheet does not constitute legal advice and shall not without our express written consent in each individual case be relied upon by any person.