Just how important are Powers of Attorney?

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Are they more important than a Will?

There is a perception that Lasting Powers of Attorney (LPA’s) are something that are done at a later stage in life. In fact Lasting Powers of Attorney are equally as important at a younger age. Whilst we all hope that we do not ever lose capacity unfortunately there is no guarantee. Capacity could be lost as a result of brain tumour, stroke or an unforeseen accident.

In the case of Mr Visser a 38 year old man suffered a brain injury as a result of a serious crash that left him unable to make decisions for himself. Fortunately Mr Visser had given his wife Power of Attorney which allowed her to fulfil his wishes and turn off his life support machine. This decision which would not have happened had she not had Power of Attorney. The story is heart breaking and it emphasises the importance a Power of Attorney has for everyone of all ages. If Mrs Visser had not had Power of Attorney she would have had to apply to the Court of Protection for a Deputyship Order, an application which can take around 7 months and is very costly.

Lasting Powers of Attorney allow you to appoint people to make difficult decisions and fulfil your wishes when you are no longer able to. Anyone over the age of 18 can make a Power of Attorney, so long as they still have capacity.

There are two types of Lasting Powers of Attorney. Firstly, the Property and Financial Affairs Power of Attorney which allows Attorneys to deal with your money and property. It can be used by Attorneys as soon as the document is registered, meaning that this covers physical frailty such as being unable to leave the house due to a broken leg or you are out of the country.

The second type of LPA is the Health and Welfare Power of Attorney which allows Attorneys to refuse or consent to any medical treatment or deal with issues if in a care home. This Power of Attorney only comes into play once you have lost capacity. The Health and Welfare Power of Attorney, as demonstrated above, is equally as important as the Financial Power of Attorney.

Another case that demonstrates the importance of having an LPA is Ross & Davies v Cardiff Council where a women was in a care home and her husband wanted to take her on a final cruise. The woman was physically fine but had some memory difficulties. The care home said no and the case went to the Court of Protection. The Court stated that she did in fact have the capacity to decide whether she wanted to go or not and accordingly allowed her to go. Had the husband had a Power of Attorney for his wife the case would never had gone to Court and incurred the unnecessary expense.

Powers of Attorney are equally as important as Wills and therefore something that everyone should consider.

For further information and advice concerning Lasting Powers of Attorney or a Will please contact our Wills, Trusts & Probate team on 01733 882800 or email [email protected].

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