The summer solstice is here again, and many of us are giving some serious thought to our holiday plans. Are you a fitness fanatic or extreme sports enthusiast? A spot of paragliding anyone? Rock-climbing? Sky-diving? Maybe you are a speed demon, taking a road trip abroad on a Harley Davidson, with the wind in your hair.
We all hope to be able to enjoy these kinds of activities without causing ourselves an injury. Let’s face it, in these increasingly turbulent times you don’t need to be old to be faced with illness or incapacity. You don’t even need to be an adrenaline-junkie. But what if you were unfortunate enough to be involved in an accident? If you sustained a life-changing injury; who would make the key decisions about your health and welfare?
Who would decide whether or not to keep you on life support if there was no hope of recovery? If you needed a prolonged stay in hospital, who would manage those investments, bills, direct debits and standing orders? What if your property had to be sold because you couldn’t return to it?
Now you’ve considered the ‘Worse Case Scenario’, you will want to know what measures you can put in place to ensure your financial and personal needs are properly taken care of.
It is a legally binding document recognised by banks, pension providers and other institutions. It is used by an individual to give authority to another, for the purpose of managing their property and financial affairs. The person giving the authority is known as ‘the Donor’. Those receiving it are known as ‘the Attorneys’.
The Donor can choose any trusted individual over the age of eighteen, or a professional, to act as their Attorney. Those appointed must not be an undischarged bankrupt. It is possible to appoint more than one person, and to name ‘Replacement’ Attorneys in the event that one of those appointed is no longer able to continue.
The Donor must have their mental capacity assessed as part of the process of making the Power of Attorney. Typically, a ‘Certificate of Mental Capacity’ is provided by the Solicitor drawing up the Power of Attorney. The Certificate of Mental Capacity can also be supplied by a friend of sufficient long-standing.
A Lasting Power of Attorney continues even if the Donor loses their mental capacity.
The Personal Welfare Lasting Power of Attorney enables the Donor to appoint an individual(s) to take care of health and welfare issues. They may, for example, be called upon to decide where the Donor lives. They might also be asked for their input in connection with medical treatment. Most importantly, they may be asked to decide whether or not the Donor is to receive ‘life sustaining treatment’.
If you have appointed a Personal Welfare Attorney, then you can be confident that they have the authority to make those decisions. You can be assured that the medical profession will take their wishes into account. Your nearest and dearest should not need to pursue an action through the Courts to ensure that your wishes are met.
Ideally, you will discuss your preferences as to ‘life sustaining treatment’ with your attorneys when you make the Power of Attorney. It is possible to include guidance and restrictions for your attorneys in the legal document itself. However, you should ensure the terms are drafted by a suitably qualified legal practitioner. Failure to do so may render the document ineffective.
Powers of Attorney are governed by The Mental Capacity Act 2005. The principles of the Act ensure that an attorney must act in your best interests. Acting in your best interests must be in a way which is least restrictive of your rights and freedoms.
Once complete, a Power of Attorney must be registered. The Office of the Public Guardian is responsible dealing with an application to register an LPA. There is a statutory waiting period before registration. This allows anyone, who feels that that undue pressure or fraud has been imposed upon the Donor to make the LPA, to object. It is possible to name independent third parties to receive notification of an application to register an LPA. This provides a potentially vulnerable Donor with an extra layer of protection.
As long as you have the mental capacity, you can revoke a Lasting Power of Attorney. However, if you lose capacity, the Power of Attorney continues. This is why it is important to consider carefully who you will appoint to the role.
Now you’ve thought about the issues, back to that holiday planning. If you would like to make a Power of Attorney, or for further information, please contact me, Jennifer Norman. (Solicitor) t 01507 499355 E firstname.lastname@example.org