Coronavirus : Is it time to start thinking about making Lasting Powers of Attorney?
Whilst the coronavirus pandemic has seen a vast increase in the number of people making Wills. There has been little discussion on the importance of Lasting Powers of Attorney in light of the new era/normal that is social distancing.
With the vulnerable and elderly potentially set to be subject to more stringent social distancing and isolation measures than the rest of the population at large, for the foreseeable future, managing what used to be easy administrative tasks could potentially become more difficult than ever.
What is a Lasting Power of Attorney?
Lasting Powers of Attorney came into force on 1st October 2007 following the enactment of the Mental Capacity Act 2005.
The old style Enduring Powers of Attorney (which could no longer be made after 1st October 2007) only provided for Attorneys to act in relation to matters concerning an individual’s property and financial affairs. The birth of Lasting Powers of Attorney created a type of Lasting Power of Attorney which relates to matters of an individual’s health and welfare decisions.
It is important to note that if you do have an Enduring Power of Attorney in place it is still valid, however, your Attorneys shall not have as wide powers as they would under a Lasting Power of Attorney and cannot make decisions in relation to matters concerning your health and welfare matters. Moreover, an Enduring Power of Attorney has to be registered when the donor of the document begins to lose the capacity to manage their own affairs, which can cause a significant time delay in the Attorneys being able to act.
As briefly detailed above, there are two distinct types of Lasting Powers of Attorney:
i) Lasting Power of Attorney for Property & Financial affairs; and
ii) Lasting Power of Attorney for Health & Welfare
You cannot make a single Lasting Power of Attorney which governs both your property & financial affairs and your health & welfare.
Whilst the two documents have some similar elements, there are some key distinctions between the two.
Property & Financial Affairs :
The Lasting Power of Attorney for Property & Financial Affairs gives Attorneys the legal authority to attend to matters relating to property, investments, bank accounts, the management of any income and the settlement of any bills on behalf of the Donor.
Whilst, you can direct that your Lasting Power of Attorney for Property & Financial Affairs can be operated by your chosen Attorneys as soon as it is registered with The Office of the Public Guardian all actions which an Attorney facilitates on behalf of the Donor, whilst the donor still possesses the requisite mental capacity to manage their own property and financial affairs, must be done in accordance with the donor’s instructions and wishes. Attorneys, upon accepting their appointment, are obliged to act in the best interests of the Donor at all times.
Ensuring that the Lasting Power of Attorney for Property & Financial Affairs is in place can be of paramount importance for those who during the current coronavirus crisis are unable to manage their own affairs during this difficult time of self-isolation and social distancing and are subsequently needing to rely on others to carry out tasks on their behalf.
Coronavirus aside, the Lasting Power of Attorney for Property & Financial Affairs is also extremely helpful for those who would either prefer that someone else manage their property and financial affairs themselves; or are unable to do so because of any physical ailment.
Health and Welfare :
Unlike the Lasting Power of Attorney for Property & Financial Affairs, the Lasting Power of Attorney for Health & Welfare cannot be operated by your Attorneys until such time as you have lost capacity to make decisions on your own behalf in relation to matters of your health and welfare.
One key aspect of the Lasting Power of Attorney for Health & Welfare is that you can stipulate as to whether you wish to give your Attorneys the authority to give or refuse life sustaining treatment on your behalf.
Whilst both types of Lasting Power of Attorney allow you to detail any preferences and instructions you may have to your Attorneys, the Lasting Power of Attorney for Health & Welfare allows you to elaborate your wishes in relation to matters such as remaining in your own home for as long as possible (finances permitted and save for periods of hospitalisation); the further expansion of your wishes in respect of receiving life sustaining treatment; and any treatment preferences you may have.
With our health becoming of a more paramount importance than ever, having a Lasting Power of Attorney for Health and Welfare can give you peace of mind that those who you wish to make decisions on your behalf in this regard are legally empowered to do so.
We believe it is imperative that you seek legal advice when creating and registering Lasting Powers of Attorney as in the absence of such being completed correctly not only could your wishes not be adhered to however the documents could end up being ineffective and the need for an application to the Court of Protection could arise.
Please do not hesitate to contact the Wills, Trusts and Probate Department should you wish to discuss Lasting Powers of Attorney in further detail.