A power of attorney is a legal document that allows an individual to appoint someone they trust to act on their behalf to make personal, medical, and financial decisions. The person who forms a power of attorney is known as a donor whilst the person who’s appointed to act on their behalf is known as an attorney. This document is only in effect as long as the donor is alive and has mental capacity.
You may think that once you’ve appointed a power of attorney, you lose control of any decisions related to your personal well-being and financial affairs. This is completely not true as your power of attorney only comes into effect when you lose mental capacity.
What Are The Main Roles of a Power of Attorney?
There’s three main roles of a power of attorney, these are:
- Making medical decisions on behalf of the donor.
- Handling legal and financial matters on behalf of the donor.
- Making personal decisions on behalf of the donor when they lose their mental capacity.
Why Do I Need a Power of Attorney?
Creating a power of attorney is a wise decision to make if you have financial property or an estate that you wouldn’t want ending up in the wrong hands. If you lose your mental capacity and are unable to manage your personal and financial affairs, it’s helpful to have a power of attorney to make sure your wishes are followed.
A power of attorney needs to be established and legally written whilst you’re still mentally stable enough to make the necessary decisions. It’s a particularly good idea to get your GP involved in the process if you’re granting your power of attorney to make medical decisions on your behalf.
How to Get a Power of Attorney
The first step to getting a power of attorney written up is to contact a solicitor. It’s possible for you to make a power of attorney yourself, but it’s a highly complex document, so it’s much better to get legal help.
Here’s some of the reasons why using a solicitor really is the best option:
- They can advise you on who you should appoint as your attorneys and make sure those you choose are willing and able to act on your behalf.
- They can professionally draft your wishes to ensure they can all be carried out should you lose your mental capacity.
- Advise you on whether you need a separate lasting power of attorney to protect your business interests (if applicable to you).
- Review everything you need to protect your application from being rejected by the Office of The Public Guardian.
What Happens If I Don’t Have a Power of Attorney?
Your family members are legally allowed to apply to the court to act on your behalf if you lose your mental capacity without having a power of attorney in place. In England and Wales, this is known as a Deputyship Order. However, it can take quite a bit of time and a considerable amount of money.
A deputy is a person that’s appointed to be legally responsible for you should you lack the capacity to make decisions yourself. They are appointed by the Court of Protection, and their duty is to act in your best interests. There’s 2 different types of deputies that can be appointed, a financial affairs deputy and a personal affairs deputy.
How Do I Choose An Attorney?
When it comes to choosing an attorney, it’s a good idea to appoint more than one if you have the option available to you. However, there’s no limit as to how many you can have, and it’s entirely down to you. You can also nominate substitutes in case an attorney dies or can’t act on your behalf.
To legally set up a valid power of attorney arrangement, your attorney(s) must be the following:
- In good mental health.
- Over 18 years old.
- Not bankrupt.
A family law solicitor will also suggest that your attorney(s) should:
- Be someone you trust.
- A long term partner
- Someone who is likely to be in good health later in your life.