Chiltern Wills specialises in preparing Lasting Power of Attorney in Amersham. We are a friendly, local Will writing business based near Amersham in Jordans Village. The business is run by Rebecca D’Arcy, a former London solicitor. We offer affordable fixed fees, face-to-face or virtual meetings and a free initial consultation.
What is a Lasting Power of Attorney and why do I need one?
A Lasting Power of Attorney in a deed in which you appoint ‘attorneys’, who are trusted people of your choice, to act on your behalf if you ever lost capacity to manage your own affairs during your lifetime. Lasting Powers of Attorney could be useful if you had an accident or illness and were in hospital, if you were abroad for a long period, or if you suffered from dementia. They can also be useful in old age more generally, if you need some help to run your affairs. Your attorneys are under a duty to act in your best interests at all times.
Lasting Powers of Attorney come in two distinct types, and ideally each person should have both in place.
Lasting Power of Attorney for Property and Financial Affairs
The first type is a Lasting Power of Attorney for Property and Financial Affairs. This authorises your attorneys to make decisions about financial matters. For practical purposes, this means that your attorneys are able to do almost anything that you could do yourself in relation to your property and finances on your behalf, such as paying bills, or even selling your house. The deed can be used immediately, with your consent, or alternatively you can provide that it should only come into effect if you ever lost capacity to manage your own affairs.
Lasting Power of Attorney for Health and Welfare
The second type of Lasting Power of Attorney is a Lasting Power of Attorney for Health and Welfare. This type of power of attorney allows your attorneys to make decisions about your health and welfare, including medical treatment and where you live. Importantly, you are asked in the deed to decide whether or not you wish to give your attorneys power to give or refuse consent to life-sustaining treatment. A Lasting Power of Attorney for Health and Welfare may only be used if you have already lost capacity to manage your affairs yourself.
Is my Enduring Power of Attorney still valid?
Yes. If you have a pre-2007 Enduring Power of Attorney which was correctly signed, it is still valid. However, it will only empower your attorneys to make decisions about your property and financial affairs, and not those relating to your health and welfare or medical treatment. It would be a good idea to make a Lasting Power of Attorney for Health and Welfare as well, so that your attorneys have all of the necessary powers, should the need arise.
How should I appoint my attorneys?
You have three options. The first option is for your attorneys to be appointed ‘jointly’, i.e. they must act unanimously at all times. The downside of this is that if one of your attorneys died or was unable or unwilling to act, and you had not appointed a replacement attorney, the remaining jointly-appointed attorneys would not be able to do anything.
The second option is for your attorneys for be appointed ‘jointly and severally’, which means that they may act either together or individually. This is the recommended option, and is the most flexible.
Thirdly, you could consider appointing your attorneys ‘jointly for some decisions and jointly and severally for others’. This would allow your attorneys to take day-to-day decisions individually, but you would specify the decisions which they must take together. This usually covers big decisions such as selling your house, or deciding that you should move into long term care. Many clients find this option appealing, but the downside is that, as above, you could potentially find yourselves in a situation where your attorneys are completely unable to take an important decision because one of your joint attorneys has died or is unable or unwilling to act.
Do my Lasting Powers of Attorney need to be registered?
Yes – once they have been signed, they should be registered with the Office of the Public Guardian, which is a public body whose job is to oversee and regulate how attorneys use their powers. The Office of the Public Guardian charges £82 per deed to register Lasting Powers of Attorney, and the registration process usually takes two to three months from beginning to end.
How do I end my Lasting Power of Attorney?
You are free to revoke your Lasting Power of Attorney, as long as you still have mental capacity. Your Lasting Power of Attorney will also come to an end if your attorney divorces you, loses capacity themselves, goes bankrupt or dies. Otherwise, it will come to an end on your death. At that point, your attorneys are obliged to notify the Office of the Public Guardian and to return the original Lasting Powers of Attorney and any certified copies, along with a copy of your death certificate.
What if it is too late to make a Lasting Power of Attorney in Amersham?
If a client has lost capacity without making a Lasting or Enduring Power of Attorney, the solution is to make an application to the Court of Protection to have someone appointed as their ‘deputy’. Unfortunately, the deputyship application process is considerably longer and much more expensive than simply making Lasting Powers of Attorney whilst you have capacity. Making Lasting Powers of Attorney also means that you can choose who your attorneys are rather than a court making that crucial decision for you, so making Lasting Powers of Attorney is always preferable where possible.