Wills and powers of attorney solicitors
To speak to a member of the London based OTS Solicitors Wills and power of attorney team about drawing up a Will or power of attorney please call us on 0203 959 9123 or contact us through our online enquiry form.
What does a lasting power of attorney do?
A lasting power of attorney is a legal document that says you (‘the donor’) authorises a trusted family member, friend or professional advisor to act on your behalf if you are not capable of making your own decisions. The person/s nominated to assist you are referred to as ‘the attorneys’.
Many people think that if you sign a lasting power of attorney you lose control. However that is not the case because:
Although you sign a power of attorney it does not come into force unless you want it to do so or if you lose capacity to make decisions for yourself;
When signing a power of attorney you chose who you want to appoint as your choice of attorney and the type/s of power of attorney you want to sign. If you do not sign a power of attorney and you lose capacity to make decisions then you are not in control of who is appointed to act for you.
Types of power of attorney
There are two different types of lasting power of attorney. They are designed to cover different things. The two powers of attorney are:
Health and welfare power of attorney. This type of power of attorney authorises your nominated family or friends to make decisions about your medical treatment and care needs if you are not able to do so because you lack capacity to make decisions on your own behalf. Unlike a property and financial affairs power of attorney, this document will only ever become effective if you lack the mental capacity to make decisions for yourself; and
Property and financial affairs power of attorney. This type of power of attorney enables your agreed attorneys to manage your financial affairs if you ask them to do so (for example, if you want your attorney to manage your financial affairs or to sign paperwork whilst you are overseas) or if you lack capacity to make your own decisions (for example, if you lack capacity to manage your financial affairs your attorney can access your bank account to pay bills on your behalf or to sign paperwork to sell or transfer investments).
Do you need to sign two powers of attorney?
The choice is yours as to whether you want to sign a power of attorney for health and welfare and a property and financial affairs power of attorney or just want to execute one type of power of attorney.
Sometimes people are put off from completing a power of attorney as they are worried about who to choose as an attorney. The best option is to discuss your choice of attorney with friends and family and to remember that the attorneys for your property and financial affairs power of attorney can be different to the attorneys you choose for your health and welfare power of attorney.
Requirements for a power of attorney
The legal requirements to execute a power of attorney are not onerous. You must:
- Be over the age of eighteen; and
- Have mental capacity (the ability to make your own decisions) when you sign the power of attorney.
You do not need to be a British citizen to sign a power of attorney. Many international clients find that a property and financial affairs power of attorney is helpful to efficiently manage financial matters when they are overseas.
Obtaining a power of attorney
A power of attorney is drawn up by your solicitor and then executed by you. It is essential that the power of attorney is correctly witnessed as otherwise it might be invalid. The power of attorney should be registered with the Office of the Public Guardian. However, the document will not be used unless there is a loss of capacity, or in the case of a property and financial affairs power of attorney, you give permission for its use or you lose capacity.
Relatives and powers of attorney
Will and power of attorney solicitors are often asked by concerned relatives to draw up a power of attorney for a family member. A solicitor cannot do this if the relative has already lost capacity to make their own decisions, for example, because they have dementia.
If you are worried about a family member who may not have the capacity to sign a power of attorney but needs help with managing their affairs, an application can be made to the Court of Protection for a deputy to be appointed to look after their affairs. The appointment of a deputy costs more in legal fees than drawing up a power of attorney. There will be a delay between the Court of Protection application and the appointment of the deputy. That is why it is best if a power of attorney is signed before capacity is lost.
Powers of attorney and Wills
A power of attorney is a completely separate legal document to a Will. You should have a power of attorney and a Will because they are not alternatives. A power of attorney helps manage your affairs whilst you are alive but lack capacity to do so whilst a Will is only effective after your death and sets out what should happen to your assets and estate.
Power of attorney and next steps
A power of attorney provides peace of mind knowing that you have put your affairs in order in case there comes a time when you cannot make decisions on your own behalf.
If you are married or in a civil partnership, a solicitor can prepare mirror powers of attorneys for you. An inheritance tax planning solicitor can also offer advice on your best options for estate planning.
There is no need to worry about the decision to sign a power of attorney as if you change your mind about the power of attorney, or your choice of attorneys, you can cancel or change the document provided you have capacity to make your own decisions.