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Don't leave it too late - Lasting Powers of Attorney

The number of people aged 90+ living in England and Wales has increased by more than a third since 2002. We are all living longer, and the impact upon healthcare, pensions and government policy is never far from the news. None of us knows how long we will live, but there are sensible steps you can take to help plan for the future.

One of these is to plan now for what happens in the event that you become mentally incapable of making decisions for yourself. It's far easier to plan now, when that eventuality is hopefully a far off and unlikely possibility, than leave it too late.

Since 2007, two types of Lasting Powers of Attorney have been available: ‘Health and Welfare’ and ‘Property and Financial Affairs’.

Choosing your Attorney

The most important part of creating a Lasting Power of Attorney is choosing whom you wish your attorney to be.

It is essential to choose attorney(s) who you trust completely. An attorney appointed to both ‘Health and Welfare’ and ‘Property and Financial Affairs’ will have a say over topics as wide as how your money is spent and invested, what clothes you wear and potentially whether to keep you on life support.

If appointing more than one attorney, you need to consider how they may work together. This was recently demonstrated when the Court of Protection became involved in the affairs of a mother who appointed her two daughters as her attorneys. The sisters’ relationship became so acrimonious, the Court ruled they could no longer act and that a professional lawyer must replace them.

Court of Protection and Deputyship

If you lose mental capacity and have not made a Lasting Power of Attorney (or Enduring Power of Attorney if you made it pre-October 2007) then banks, insurers and utility companies will not recognise people trying to act on your behalf. Your family then has to deal not only with your mental incapacity, but also their inability to access your finances.

If this were to happen all is not lost; there is a legal mechanism (though costly and time consuming) to apply to the Court of Protection to act on your behalf (called a deputy).

However, not only is the process long and costly, once appointed the deputy must keep the Court updated as to how they manage your affairs. We always therefore recommend planning for the future now rather than crossing your fingers that the worst will not happen.

The contents of this article were written by Wansbroughs Solicitors in May 2015 and were intended for general information purposes only and shall not be deemed to be, or constitute legal advice. This article was posted with the permission of Wansbroughs Solicitors whose views are independent of Keith Montgomery Associates Ltd.

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