Have you ever wondered who would take control of your affairs should you lose the capacity to do so yourself?
Many of us will have given this a fleeting thought and wrongly presumed our spouse, or next of kin, would automatically be given the legal rights to manage our affairs, if the circumstances arose. Unfortunately, this is not the case. It is a misunderstood fact that no-one has the legal right to automatically take control of someone else’s affairs – even if you are married to or are a close blood relative of the individual in question.
So, who does take control of your affairs?
If you or a loved one loses the ability to manage your affairs (financial, personal or property) and you haven’t made previous legal provision for this, then an application to The Court of Protection would have to be made.
This application would be considered, and a limited authority could be granted to an individual, under a ‘deputy’ title. However, this is both an expensive and time-consuming procedure, taking up to 6 months, and often costing in excess of a thousand pounds. This can easily add unnecessary stress, to an already difficult time.
Unfortunately, there is also no guarantee that a ‘deputyship’ will be granted at the end of this process – in which case your affairs would be passed over to your local authority. This is not a great outcome, and anyone would much prefer the peace of mind of knowing who will be handling their affairs if they were unable to do so.
Which is why it is so important to discuss these matters early on with your relatives and close friends. It may of course feel uncomfortable to have these kind of discussions, but by doing this now, long before there is any sign that this may be needed in the future, everyone will understand the potential pitfalls of this process and the benefits of an alternative solution.
So, what is the alternative solution?
Quite simply a lasting power of attorney document will alleviate all of the above issues and uncertainties linked with The Court of Protection route.
The benefit of a lasting power of attorney document is that it does not need to be used immediately. There is no set timeframe for expiration (the only caveat being that the validity of the document ceases to exist as soon as the ‘principal’ person dies). This means this document can be used at any time in the future, as and when required. This document should be in place before it is needed, as a power of attorney cannot be gained, it has to be issued by the person in question whilst they are still in a sound state of mind.
In England and Wales there are currently two main types of power of attorney in operation, granted by power of attorney solicitors.
- Lasting Power of Attorney (LPA)
This will be required if you need to handle the property and financial affairs or health and welfare issues of someone that has become incapacitated mentally.
- Ordinary Power of Attorney (OPA)
This will cover your requirements if you need someone to look after your financial affairs for a certain period of time. For example, if you become physically incapacitated or are out of the country for a set amount of time. However, this can’t be used if your mental capacity is to be impeded in any way.
If you are granted a power of attorney, it is imperative that you make decisions without any personal agenda or bias, and that you act in a fair and considered manner. This will ensure your responsibility focuses on the best interests of the individual.
How do I obtain a Power of Attorney?
It is highly recommended that you speak with, and use the professional services, of a lasting power of attorney solicitor as soon as you have reached a decision to appoint someone to act on your behalf. The benefit of using a lasting power of attorney solicitor gives you the ability to create a customised power of attorney document, which is aligned to your own personal set of circumstances.
If you are discussing this with your spouse or partner, then it should be noted that a mirror power of attorney document can be created for couples. This will give either of you the ability to appoint each other respectively. It is also possible for sole traders & SME business owners to create a lasting power of attorney document – don’t forget if you became sick or are out of the country for an extended time, who would authorise the salary payments or sign off commercial decisions? In this instance appointing someone to take control of the business affairs is imperative.
By contacting Hook & Partners today to create a lasting power of attorney, you can rest in comfort knowing that your personal affairs will be taken care of should you be unable to manage these in the future.