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Partner and Head of Family Law, Rugby
Increasingly, myself and members of my team receive enquiries or instructions to prepare a Lasting Power of Attorney. This rise is due to raised awareness of the potential or imminent need for these documents and an understanding that preparing these documents is just as important as preparing a Will.
Whilst your Will deals with your estate once your have passed away, a Lasting Power of Attorney allows you to appoint trusted friends or family to deal with your affairs whist you are alive but do not have the capacity to deal with them yourself.
There are two types of Lasting Power of Attorney; one which allows your Attorneys to deal with your property and financial affairs and one which allows them to deal with health and welfare decisions on your behalf.
Making these powers whilst you are well and have full mental capacity sometimes seems like a strange time to prepare these documents, however this is the only time you will be able to prepare such a document.
There may be many reasons why you could need help in the future. You may simply need somebody to access your accounts to pay bills or you may need help applying for benefits, but most commonly people need help when they move into a care or nursing home and the fees need to be paid.
So what happens if you have lost capacity, need help with your finances but not prepared a Lasting Power of Attorney or an Enduring Power of Attorney? In these circumstances somebody would have to make an application to the Court of Protection to become a Deputy on your behalf.
The Court of Protection will consider the application and decide whether the applicant should be appointed as a Deputy. The Court will also make specific orders for that Deputy to be able to deal with the financial affairs of the person who no longer has capacity. This can be to sell a property, access accounts or make provision for people that may have been financially dependent on the person that has lost capacity.
It should also be noted that whilst the Court of Protection has the power to appoint a Deputy for health and welfare decisions, it is very reluctant to do so. Yet another reason to prepare both types of Lasting Powers of Attorney whilst you are able to so and whilst you to have the most control over what happens if you can no longer deal with these decisions yourself.
If you would like any advice please contact us.