Powers of Attorney
Most people live their day to day lives without thinking what would happen if they suddenly became incapacitated, for example in an accident or sudden ill-health such as a stroke. Others have some inclination that they are losing their mental capacity as it is a slow process as old age starts to take a hold. Either way, thought should be given to who will manage their affairs, whether temporary or permanently. This is called a power of attorney. It authorises a specific individual called an attorney to take decisions on behalf of another either generally or in limited circumstances. These are not to be confused with an ordinary power of attorney, which may be granted on behalf of someone who still has mental capacity but may require a nominated person to sign a document on their behalf. A normal power of attorney ceases to have any effect when the person loses mental capacity. Enduring powers of attorney and lasting powers of attorney are concerned with situations in which mental capacity is lacking or lost.
Who should have a lasting power of attorney?
The short answer is anyone. This is because they can be made prior to losing mental capacity so are very good to have as a precaution in case of an accident or illness. When considering a will it is a good time to consider making a power of attorney at the same time. People who already have an enduring power of attorney may also consider creating a lasting personal welfare power of attorney in circumstances where decisions concerning welfare or medical treatment cannot be made under the enduring power of attorney.
If you own a business as a sole trader, in a partnership, as a shareholder of a limited company or any other legal entity, you should consider making business LPAs. With a business LPA, your chosen attorney or attorneys may make business decisions for you. Find out more on our dedicated Business LPAs page.
Is there any alternative if no power of attorney has been made
This usually involves an application to the Court of Protection. This court makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made because they lack mental capacity. The court can appoint a ‘deputy’ who has similar fiduciary duties to an attorney and can make decisions about finances, health and personal welfare issues.