Howells have put together a plain, expert guide to lasting power of attorney. Whether you are considering arranging lasting power of attorney for a family member, friend or solicitor, or have been asked to take on the role of attorney, this complete guide will answer all your questions. In this guide we will be covering:
- The duties of an attorney
- Who can and cannot be an attorney
- Having more than one attorney
- Different types of attorney
- How to choose an attorney
- How to find highly regarded solicitors for the elderly
Lasting power of attorney is an extremely important arrangement and ensures you and your medical, financial and personal affairs are looked after once you are no longer in a mental or physical position to handle them yourself. If illness, disability and incapacitation mean you are no longer able to mentally or physically look after these matters yourself, the person or people you choose to give lasting power of attorney will make decisions and arrangements on your behalf.
Organising lasting power of attorney is often a sensitive and difficult business. It is important to make use of highly regarded solicitors who are experienced in this area.
The Duties of an Attorney
Whether you are thinking about appointing an attorney, or have been asked to be an attorney yourself, this section should clear up any questions you might have about what an attorney actually does.
Attorneys are individuals chosen to take responsibility for another person’s medical, personal and/or financial matters if that person becomes either physically or mentally unable to handle their own affairs. Lasting power of attorney is a legal obligation which ensures an attorney acts in the best interests of the incapacitated party. Should an attorney deliberately, or neglectfully, fail to act in the best interests of the unable party they are in breach of the law and could face a substantial fine, up to five years in prison and will be forced to pay for any losses suffered by the dependant party.
The responsibilities of an attorney vary from situation to situation according to the illness, incapacitation or disability suffered by the incapacitated party. Your solicitor will be able to help the key party customise the powers of attorney so they are cared for and dealt with in a specific way. In general terms, however, an attorney is expected to:
- Act in the best interests of the incapacitated party
- Make financial, medical and personal decisions on their behalf
- Keep their personal matters confidential
- Make decisions as stated by the power of attorney document
- Not pass on lasting power of attorney to any other party unless otherwise authorised
Who Can & Can’t Be My Attorney?
To a large extent, who you choose to be your attorney is up to you. The majority of people choose a trusted friend, family member or a solicitor to take on lasting power of attorney. The individual or individuals you choose to act as your attorney must be entirely trustworthy, able to act in accordance with your wishes and willing to take on the responsibility involved.
There are a few situations where you may not be able to use the attorney of your choice. For example, a solicitor will not allow you to choose an attorney who:
- Is under 18
- Is mentally unable to fulfil the role
- Has ever been declared bankrupt (this is only relevant when arranging a lasting power of attorney for your property and financial affairs as we will discuss later).
Can I Have More Than One Attorney?
Yes, having more than one attorney is entirely possible and is often very sensible. A person might choose to give lasting power of attorney to more than one person for a number of reasons:
- To make sure there is a replacement ready to handle your affairs in case of the unexpected death or incapacitation of the originally appointed attorney.
- As a way of sharing the responsibility of having power of attorney.
- To designate specific responsibilities to particular people. For instance, if you would like one person to be responsible for your medical and health care, and another to look after your financial matters.
There are a number of ways you can arrange for more than one attorney to work simultaneously in your best interests. These are:
- Joint Lasting Power of Attorney: In this case, all attorneys will make a collective decision which they must all agree upon and must all sign. Whilst this makes very certain actions will be in your best interests, this can be impractical when it comes to reaching a group consensus and arranging for all attorneys to be in the same place at any given time.
- Joint & Several Lasting Power of Attorney: This is the most flexible option but it does have less structure and less in-built control. This gives your attorneys the space to work independently or together or interchangeably as they see fit.
- Joint Lasting Power of Attorney and Joint & Several Lasting Power of Attorney: This option gives you a lot more control. It allows you to make a concrete decision about how you want your attorneys to act. You can assign specific decisions to specific attorneys or ensure all attorneys make a collective decision in certain situations (i.e. the sale of your home).
Health & Welfare Attorneys
There are a few different kinds of attorney you can make use of. Lasting power of attorney over your health and welfare is something you might want to leave to a specific person. However, you may not wish for the same person to handle your financial affairs. In this case, health and welfare attorneys will be assigned to make decisions about things like:
- Your healthcare and medical care
- Your potential relocation to a care facility
- Your diet, clothing and day-to-day activities (if appropriate).
- Life-sustaining treatment (for example Do Not Resuscitate orders etc.)
Property & Financial Affairs Attorneys
Meanwhile, if you choose a separate property and financial affairs attorney they will be responsible for a different set of decisions which could include:
- Paying bills
- Selling your property
- Assisting with financial affairs if you are physically unable (for example talking with your bank in person or on the telephone)
Choosing the Best Person for Lasting Power of Attorney
As any experienced team of solicitors will tell you, choosing who to give lasting power of attorney is very important, and often a very difficult decision to make. At Howells, our solicitors will advise you to ask yourself a few questions before making the decision:
- Does the candidate you are considering take good care of their own financial and personal matters?
- How well do you know them? Do they know you well enough to act in your best interests?
- Can you trust them to use their lasting powers of attorney for your benefit instead of their own, financial or otherwise?
- Is the candidate willing to be your attorney?
If the answer to all these questions is ‘yes’, you are likely to have selected a good attorney. It is vitally important you discuss the matter thoroughly with the person you want to give lasting power of attorney to. Many solicitors recommend you bring your prospective attorney to any meetings you have with your solicitors ensuring the candidate fully understands the responsibilities involved and is able to decide whether they will be able to act in accordance with your wishes.
Following these guidelines should ensure you choose the right people to give lasting power of attorney. This will give you the peace of mind in later life that your medical, financial and personal matters are in safe hands.
If you have any further questions about any element of lasting power of attorney, please do not hesitate to get in touch with Howells today. We have worked to arrange and facilitate lasting powers of attorney for many years and can be trusted to behave sensitively, professionally and in your best interests.
Get in touch with our team on 0808 178 2773 today.
