Probate lawyers are urging the government to introduce reforms to make it easier for families to access the ‘digital assets’ of deceased relatives. A new report carried out by STEP – the professional body for inheritance planning advisers – highlights the extent of the distress caused by being cut off from digital assets when family members
Lasting Powers of Attorney
Lasting powers of attorney are forms you complete and sign, naming people you want to be able to make decisions for you which continues even if you are no longer able to make them for yourself (if, for example, you have dementia or are unable to communicate following a stroke).
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What type of decisions can my attorneys make for me?
There are two types of Lasting Power of Attorney covering two types of decision; one is Property and Financial Affairs and the other is Health and Welfare. In general, your Attorney can make all the decisions which fall in those categories that you would have been able to make if you were in full health.
Why are lasting powers of attorney so useful?
Property and Financial Affairs
Financial institutions such as banks and organisations such as the Department for Work and Pensions are restricted to only being able to deal with the account holder or asset owner, or their Attorney under a registered Lasting Power of Attorney. If anyone else, even a spouse or other close relative, tries to deal with your assets, they will find that they cannot do so without a Court Order.
Health and Welfare
When it comes to making decisions such as;
- Should you have this operation?
- Should you go into this care home?
- Should your life support machine be switched off?
your Attorney’s decisions under a Health and Welfare Lasting Power of Attorney will overrule the decisions of third parties such as doctors, social workers and other family members in the same way that you would be able to overrule them yourself.
End of Life Care
The Health and Welfare Lasting Power of Attorney is particularly useful when it comes to end of life care in circumstances where the patient is unable to make or communicate a decision for themselves. Your Attorney can make the decisions that need to be made, cutting through the red tape that the medical profession are bound by in such situations and thereby potentially releasing you from situations (eg being kept alive in a vegetative state) they believe that you would choose not to be in.
How do I make Lasting Powers of Attorney?
There is a prescribed form for each type of Lasting Power of Attorney which must be used. They must be completed correctly otherwise they will not be valid. Broadly, the form includes the details of;
- you and your attorneys,
- any replacement attorneys,
- someone to certify you have understood the Lasting Power of Attorney at the time you made it and
- people to be notified that you have made the Lasting Power of Attorney (optional).
There is also room to list binding instructions for your attorneys and preferences for your attorneys to take into account when making decisions for you.
We recommend that you come and see one of our experienced team in the Private Client Department to ensure that your Lasting Power of Attorney;
- will cover your individual needs and preferences
- is signed by the correct people in the correct order using wording which will not be rejected by the Court of registration
- won’t fail if one of your attorneys becomes unable to act on your behalf.
What is registration?
Lasting Powers of Attorney are not valid until they have been registered at the Office of the Public Guardian (OPG). This involves sending the original document to the OPG with a fee. They will check the document thoroughly and will return it for amendment or to be re-done if there are any errors on it or they do not approve of the wording used. Once approved by the OPG, it will be returned to the applicant with an official stamp on every page. This process takes several weeks.
Once registered, unless you have chosen specifically otherwise, your property and financial attorneys could act for you straight away even if you have full mental capacity. However, even when registered the attorneys under a Health and Welfare Lasting Power of Attorney still cannot make any decisions for you unless you have lost capacity or are unable to communicate.
Are there restrictions on what my attorneys can do?
The Mental Capacity Act 2005 sets out guidelines for attorneys when making decisions using a Lasting Power of Attorney. See www.gov.uk/opg/mca-code for further detail.
Before you act
THINK – is this what the donor would want
CHECK – can the donor be helped to make all or part of the decision?
REMEMBER – every decision must be in the donor’s best interests
The ‘donor’ is the person giving the Power of Attorney. The table above is taken from the Office of the Public Guardian’s recent booklet entitled “Getting started as an attorney”.
Related Resources (View more resources)
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Presentation slides from the webinar ‘Wills and inheritance tax planning – putting the right protection in place’ which took place on Wednesday 2nd June 2021