Power of Attorney: Your Questions Answered

Introduction

Navigating the realms of Power of Attorney (POA) can often feel daunting, but it’s a vital component of managing your affairs, both now and in the future. Whether you’re considering setting one up, curious about how it works alongside a will, or looking to understand your rights and responsibilities. This article aims to demystify the process. Written in a clear, friendly manner, we’ll explore the essential questions surrounding Power of Attorney, ensuring you’re well-informed to make decisions that best suit your needs. The UK government have their own guide to POAs here.

Setting Up a Lasting Power of Attorney (LPA)

Creating a Lasting Power of Attorney is a proactive step towards safeguarding your future. It involves appointing one or more ‘attorneys’ to make decisions on your behalf, should you become unable to do so yourself. There are two types: one for health and welfare and another for property and financial affairs. Setting up an LPA is a straightforward process involving selection of your attorney(s), completing the relevant forms, and registering with the Office of the Public Guardian.

The Synergy Between a Last Will and Power of Attorney

A will and a Power of Attorney serve different purposes but work together to ensure your wishes are respected. While a will outlines how you’d like your estate handled after your death, a Power of Attorney applies while you’re alive. This allows someone else to make decisions on your behalf. It’s crucial to have both, as they cover different aspects of your life and legacy. You can see our guide to wills and other downloads here.

Attorneys and Access to the Donor’s Will

Attorneys under a Power of Attorney do not automatically have the right to see the donor’s will. Their role is to manage the donor’s affairs as per their wishes and best interests. However, in certain circumstances, with the donor’s consent or if it’s deemed necessary for the estate’s management, they might gain access.

Inclusion of Power of Attorney in Your Will

Your will cannot include Power of Attorney provisions. They are separate legal documents, each serving distinct purposes. While your will takes effect after your death, a Power of Attorney is only valid while you are alive.

Timing: When to Write Your Will and LPA

The best time to write your will and set up a Lasting Power of Attorney is now. These critical documents ensure that your wishes are known and can be acted upon, regardless of what the future holds. It’s especially important to consider these as you acquire more assets or when significant life changes occur.

Maintaining Control with a Power of Attorney

Creating a Power of Attorney does not mean you lose control over your life. You decide the extent of power given and can stipulate specific wishes or conditions. It’s about ensuring someone you trust can act on your behalf if needed.

Writing a Will Affordably

There are several ways to write a will cost-effectively, including using will-writing services or templates. However, for peace of mind and to ensure all legal aspects are covered, consulting a professional may be a wise choice, especially for complex estates.

Power of Attorney’s Influence on a Will

An attorney cannot change your will. Their role is to manage your affairs according to the existing legal documents. Any changes to your will must be made by you, ensuring it reflects your current wishes.

Power of Attorney Actions After Death

An attorney’s authority under a Power of Attorney ends upon the donor’s death. At this point, the executor named in the will takes over to manage the estate according to the will’s instructions.

What if I Change My Mind?

It’s natural for circumstances or preferences to change over time. You might find yourself reconsidering the terms of your Power of Attorney or who you’ve chosen as your attorney. The good news is, as long as you have the mental capacity, you can revoke a Power of Attorney at any time.

Revoking a Power of Attorney is a straightforward process, but it must be done correctly to ensure it’s legally binding. Here’s how you can do it:

1. Written Notice: You should provide a formal, written notice to your attorney(s) stating that you are revoking the Power of Attorney. This document is sometimes called a “Deed of Revocation.”
2. Inform Relevant Parties: Besides your attorney(s), you’ll need to inform any institutions or individuals (like banks or healthcare providers) who were aware of the Power of Attorney that it has been revoked.
3. Destroy Original Documents: To prevent confusion or misuse, destroy the original Power of Attorney documents along with any copies that might suggest the attorney still has authority.
4. Legal Advice: Depending on the complexity of your situation, you may wish to consult a solicitor to ensure the revocation is handled properly, especially if there are specific terms or conditions involved.
5. Register the Revocation: If your Lasting Power of Attorney was registered with the Office of the Public Guardian, you need to inform them of the revocation. You will need to provide the necessary documentation.

It’s important to note that revoking a Power of Attorney should be considered carefully, especially if you’re not planning to replace it. If you decide to appoint a new attorney, you’ll need to start the process anew. Your current wishes and circumstances will need to be reflected.

Conclusion

Understanding the intricacies of Power of Attorney and its interplay with wills is crucial for effective estate planning. By taking steps today, you can secure your future and ensure your wishes are upheld. Remember, it’s never too early to think about these important decisions. Seeking professional advice can provide clarity and confidence as you navigate this process.

FAQs About Lasting Powers of Attorney

1. Can I have more than one attorney for my LPA? Yes, you can appoint more than one attorney. You can also specify whether they can make decisions together (jointly), separately (jointly and severally), or a combination of both for different types of decisions.

2. What’s the difference between a Health and Welfare LPA and a Property and Financial Affairs LPA? A Health and Welfare LPA allows your attorney to make decisions about your medical care, living arrangements, and daily routine. They can only makes these decisions when you lack the capacity to make them yourself. A Property and Financial Affairs LPA allows your attorney to manage your finances, property, and assets. It can be used as soon as it’s registered, with your permission.

3. How do I know if my LPA needs to be registered? In England and Wales, both Health and Welfare LPAs and Property and Financial Affairs LPAs need to be registered with the Office of the Public Guardian before they can be used.

4. What if my appointed attorney is no longer able or willing to act on my behalf? You can appoint a replacement attorney when you set up your LPA, who can step in if your original attorney can no longer fulfill their role. It’s also possible to make a new LPA if necessary.

5. Is there a way to specify my wishes or instructions to my attorney(s)? Yes, when creating an LPA, you can include guidance for your attorney(s). This will be outlining how you’d like them to make decisions. This can help ensure your values and preferences are considered.

7. What happens if I don’t have an LPA and become unable to make decisions? If you lose the ability to make decisions and don’t have an LPA, someone may need to apply to the Court of Protection to become your deputy. This process can be more time-consuming and costly than having an LPA in place.

8. How can I ensure my LPA is set up correctly? While you can complete the forms yourself, many people choose to seek legal advice. This ensures everything is set up correctly, especially for complex situations or to ensure their wishes are clearly articulated.