By Head of Wills, Solicitor James Antoniou
If you’re considering putting in place a Lasting Power of Attorney, one of the first things to think about is who you are going to choose to act as the Attorney and have the legal authority to make important decisions on your behalf.
But what are important decisions? What are the types of decisions that need to be made? In this article I provide answers to these questions.
For initial advice and guidance call Co-op Legal Services on 03306069591 or contact us online and we will help you.
When considering what your Attorney can do for you, it's vital that you start at the very beginning and understand what options are available when putting your Lasting Power of Attorney in place. Are you choosing one Attorney or more than one? If you're choosing more than one, can they make decisions independently of each other, or must they agree before a decision can be made? Have you included any strict instructions that you want your Attorney to carry out, or have you provided details of things you would prefer your Attorney to do?
The choices you have made when putting the Lasting Power of Attorney (LPA) in place will help determine, to a certain extent, the types and possibly limitations of the decisions that your Attorney can make.
However, where possible, the Attorney should try and help you to make the decision yourself in the first instance. Your Attorney can do this by making sure that you're fully informed about the decision that needs to be made, and what options are available to ensure that you have an opportunity to ask questions, understand what is happening and to weigh things up.
Your Attorney must always act in your best interests. However, sometimes what is actually in your best interests is, of course, subjective. So a sensible approach for your Attorney is to consider what he/she thinks you would have wanted (if you were able to make the decision yourself) and also any past wishes that you may have communicated, either verbally or in writing. So it could be helpful for your Attorney to talk to your friends, family members or carers to understand what you would have wanted and whether you ever expressed a preference or wish about a certain matter.
The scope of the Attorney’s decision making ability will also be defined by the type of Lasting Power of Attorney that has been put into place. There are two specific types of Lasting Power of Attorney – one covers decisions about property and financial affairs, and the other type deals with decisions about health and welfare issues. You can have different Attorneys appointed in each type of Lasting Power of Attorney (LPA). So, whether you have one type or both types of LPA in place will determine what your Attorney can do for you.
Property and Financial Affairs Lasting Power of Attorney
With Property and Financial Affairs LPA, your Attorney can make financial decisions on your behalf. This is not just about be able to access your bank accounts or selling property that is in your name. It can cover a wide variety of areas which may require your Attorney to make decisions on your behalf. For example:
- Paying your bills
- Buying things on your behalf that you need on a daily basis
- Dealing with your pension provider
- Submitting tax returns
- Arranging payment or funding of care costs
- Making small gifts on special occasions to loved ones on your behalf (for example, birthdays and anniversaries)
Your Attorney must keep your finances separate from their own and can be ordered by the Court to provide evidence of how he/she has been managing your finances. If it is found that your Attorney has misused your money or used it for their own benefit, then the Attorney can be ordered to repay it from their own personal funds.
It's also worth knowing that your Attorney cannot vote for you or on your behalf, and also cannot amend any Will you may have in place. If, however, your Attorney knows the contents of your Will and feels that it no longer reflects your wishes, perhaps because it was written a long time ago and doesn't reflect the current situation, then he/she can apply to put in place a Statutory Will on your behalf. This isn't a straightforward process and requires the Court to agree that the proposed Will is what you would have wanted when taking into account all of your past and present circumstances.
Health and Welfare Lasting Power of Attorney
Decisions about your health and welfare can cover a broad range of areas. It's not just about whether you go into a care home or about whether or not you may want to be kept artificially alive if you suffer a severe lack of cognitive function. Other things that your Attorney could do for you include:
- Arranging and planning your daily routine
- Organising the level and type of medical support you receive
- Making decisions about your living arrangements
- Buying new clothes for you
- Taking you to the hairdresser
If your Attorney requires money to fulfil the action being taken then he/she will need to arrange this with the Attorney who is appointed to manage your finances under the Property and Financial Affairs LPA.
The role of the Attorney is an important one and it’s vital to fully understand your options when putting an LPA in place.
For initial advice and guidance call Co-op Legal Services on 03306069591 or contact us online and we will call you.