The circumstances when a professional attorney might be your best option
With continuing advances in modern medicine, we are living longer than ever before and, while we are able to keep our bodies healthy and fit into older age, often our minds cannot keep pace. A lasting power of attorney provides an additional means of support among those you trust if you are no longer able to manage your finances or make other important decisions.
While many people appoint family members or friends, there are often times when this is not an option and people delay making a lasting power of attorney. However, this could result in a court-appointed deputy (usually a stranger) making decisions on your behalf, so a better option is to appoint a professional who knows you and who you can trust to make decisions in your best interests.
There are many reasons why people choose to appoint their own solicitor or a medical professional as their attorney:
- they may be living alone, with no children or close family;
- family members might live overseas;
- family members might have their own health problems;
- children may not get along and might disagree;
- children might have problems, such as gambling, or drug or alcohol misuse;
- children may not yet be fully financial dependent themselves;
- they may not feel confident their family will carry out their wishes, either through misunderstanding or because their family have opposing views; or
- they may not wish to place the burden upon their family.
As well as trusting your attorney, you also need to be certain that they are capable of fulfilling the role. It is a significant and serious responsibility and should not be taken lightly. It may simply be too burdensome for some people.
Types of lasting power of attorney
There are two types of lasting power of attorney, one for decisions relating to your property and financial affairs, and another for decisions relating to your health and welfare. We would suggest that you look at both: the two do different things and are designed for different purposes.
If you only make one, it may be advisable to include additional powers to allow your attorneys to act in your best interests. For example, if you choose to only make one for your property and financial affairs, it is usually a good idea to allow your attorneys to have sight of your medical records, or to liaise with those in charge of your care, as this will help them with important decisions surrounding funding.
Our solicitors can help you to decide which additional powers or restrictions are suitable.
What happens if I do not make a lasting power of attorney?
If it is later decided that you do not have the capacity to make your own decisions, access to your assets would be frozen until such time as an application can be heard in the Court of Protection for a financial deputy to be appointed for you. A financial deputy works in a similar way to a property and affairs attorney, but they are subject to strict monitoring and regulation. An application for a deputy to be appointed is both costly and time-consuming.
Such an application could be made by someone already involved in your care, such as a friend or family member, or, if there is no such person, by your local authority’s adult social services team. If social services are involved, the Court will most likely appoint a deputy from their panel of approved experts. This is unlikely to be someone you already know.
While panel deputies are experts who are highly experienced in their field, understandably most people do not wish for a stranger to be in charge of their finances or welfare decisions.
If you have no one who would be a suitable attorney in your day-to-day life, a professional attorney can fill this void.
Benefits of appointing a professional
By appointing your own solicitor to act as your attorney, not only are you getting to choose someone who is already familiar to you, you can rest assured that the responsibility lies with an expert. They are also insured and regulated.
The partners of our firm act for many clients on a professional basis and we are experienced in all the issues which may arise and decisions which are likely to be required.
The attorneys you appoint will be governed by the rules of the Mental Capacity Act 2005. This Act outlines a set of principles to which attorneys must adhere, including:
- assuming that you have capacity unless it is proven otherwise;
- involving you in decisions made about your affairs; and
- always acting in your best interests.
Problems can arise when a family member or friend who is acting as attorney does not understand their duties under the Mental Capacity Act, rather than any ill intent. In contrast, professional attorneys are familiar with the role and the legal duties. They are also regulated by the Solicitors Regulation Authority and have to adhere to a strong ethical code of conduct.
Professional health and welfare attorneys
Without a lasting power of attorney for health and welfare, these decisions would be made by the medical professionals involved in your care if you were no longer able to make them yourself. Whilst they are obliged to consider the views of those who are interested in your welfare they can also override their views. Those medical professionals will be trained and experienced in their own fields but are unlikely to want to be appointed as your health and welfare attorney. Doctors these days are busy and difficult to get in touch with.
However, some clients still prefer to appoint their solicitor as the document allows them to set out their wishes. For example, your medical professionals will not necessarily be aware of specific beliefs, perhaps surrounding your dietary requirements or religious wishes. A well drafted lasting power of attorney can account for this by giving detailed guidance to your attorneys.
General power of attorney
Another example of when a professional appointment may be preferable is for limited decision making at a specific time under a general power of attorney.
In this case, you are only giving your attorneys the power to make certain decisions for you. For example, many clients who are purchasing or selling property and who may live abroad, be travelling at the key time, or simply be too busy, often wish for their solicitor to sign paperwork on their behalf.
How we can help
There are many nuances and rules involved in powers of attorney and the best approach is to discuss your circumstances and wishes with your solicitor, who can advise you fully as to the most appropriate options for you. Obtaining legal advice and instructing a solicitor to draft your powers of attorney, even if you are not considering appointing them, ensures that proper consideration is given to all of the issues which may arise.
For further information, please contact If you would like assistance with preparing a suitable Will or administering an Estate please contact our Wills, Trusts and Probate team on 01733 882800 or email [email protected].
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