Dementia Action Week is focussing a spotlight on encouraging individuals to act against dementia.
None of us know whether we will be affected by dementia and it is important to give consideration to setting up Powers of Attorney when you are fit and well. Once you have lost mental capacity, you are not able to execute a legal document and therefore cannot set up these powers “after the event”. A Power of Attorney is a legal document that can be used by your attorneys (the person or people you appoint to act on your behalf) to make decisions on your behalf for financial or health matters. A Power of Attorney can be viewed almost as an insurance policy before you lose capacity, as it cannot be determined if or when anyone will lose capacity. After capacity has been lost, it can become difficult and extremely costly for your loved ones to obtain any legal power.
There are two types of Power of Attorney: Property and Financial Affairs or Health and Welfare. The applications for each Power of Attorney are separate and you can decide to have either one or both based on your required needs. Neither can be used until they are registered at the Office of the Public Guardian – a formal registration process that is part of the work that we can do for you.
A Power of Attorney for Financial Affairs can be set up to give immediate power (as soon as it is registered with the Office of the Public Guardian) or it can be delayed until you have lost capacity. You have the ability to determine this, depending on your wishes. Conversely, a Power of Attorney for your Health and Welfare can only be used if and when you have lost your mental capacity and can no longer make those decisions for yourself.
It is important to understand that appointing an attorney for your Health and Welfare is not the same as a ‘next of kin.’ Many individuals’ understanding is that appointing a ‘next of kin’ allows them to make decisions for you, however they have no legal power and their decision can be overruled by medical professionals if to do so would be considered to be in your best interests. A Health and Welfare Power of Attorney will allow your appointed attorneys to make decisions about your Health and Welfare, once you have lost capacity, as if they were YOU. Their decision would therefore have legal standing to be able to insist on medical and care provision and where you might live, for example.
It is also important to understand that appointing an attorney for your finances does not take anything away from your power. You can still continue to carry out as many or as few of your duties as you wish. The benefit of the Power is that you can have assistance if/when you require it, without obstacles being put in the way by third parties.
You should remember that Powers of Attorney are only used during your lifetime. Once you pass away, the Power of Attorney will no longer be valid and your Will will come into force, thereby passing responsibilities of dealing with your financial affairs to your appointed Executors. If you do not have a Will, please read our blog about the importance of having a Will.
Powers of Attorney can be set up anytime and not just because you think you are likely to lose capacity. If you suffer from physical health issues it may be beneficial to you to set up Power of Attorney for example if you are unable to attend the bank or pay your bills, as your attorneys can assist on your behalf.
If you need to make a Power of Attorney, please contact one of our offices to arrange an appointment with one of our specialist solicitors. Tailored advice can be given based on each individual’s circumstances.