POWER OF ATTORNEY SOLICITORS

Power Of Attorney Solicitors

Navigating the world of legal affairs can be a complex journey, especially when it comes to property and financial affairs. This is where power of attorney solicitors come into play.

They are legal professionals who are dedicated to guiding individuals who may eventually lose their mental capacity, ensuring that their financial affairs are handled with care and expertise.

Background to Power of Attorney Solicitors

A power of attorney is a legal document that lets you (the ‘donor’) choose someone you trust (the ‘attorney’) to have the legal authority to make decisions on your own affairs.

This occurs if you become unable to do so yourself, such as if you are not in good health. This is known as ‘losing mental capacity’.

There are two main types of power of attorney in England and Wales:

The lasting power of attorney covers decisions about your property, finances, health and welfare. It comes into effect when you are registered, but while you still have mental capacity. Consequently, it continues if you lose capacity.
The Ordinary power of attorney covers decisions about your property and finances. It is only valid whilst you have mental capacity, and is automatically cancelled if you lose capacity.

According to the Office of the Public Guardian annual report published in October 2022, there were over 5.4 million active lasting power of attorney appointments in England and Wales as of March 2022.

This highlights the necessity of these legal tools in managing affairs, if mental capacity is lost.

It is crucial to recognise that a power of attorney can be a vital document that offers peace of mind to both the donor and their loved ones.

It is important to have a plan in place if mental capacity is lost, as it ensures that financial matters and personal welfare will still be handled in line with the donor’s wishes.

It is recommended to engage a solicitor to assist with creating a legally valid power of attorney, providing expertise through the process.

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Power of Attorney Solicitors

Power of attorney solicitors are professionals who have the legal power to create and register powers of attorney. They offer expert legal advice on the different types of powers, the registration process, and the duties of attorneys.

Power of attorney solicitors help to create both lasting powers of attorney and ordinary powers of attorney. They provide legal advice to donors and attorneys throughout the process, including:

Guiding donors in choosing attorneys
Drafting the power of attorney documents
Registering the power of attorney with the Office of the Public Guardian
Advising attorneys on their legal duties and responsibilities

Power of attorney solicitors can also explain the role of a certificate provider. This is a person who confirms that the donor understands the implications of the power of attorney and is under no pressure to create it.

Additionally, they support donors in understanding the role of the Office of the Public Guardian. This is a service which is responsible for protecting people who lack mental capacity.

The Role and Responsibilities of These Solicitors

The key responsibilities of a power of attorney solicitor include:

Providing legal advice to both the donor and the attorney
Drafting the power of attorney document in line with the donor’s wishes
Ensuring that the donor understands the implications of the power of attorney
Registering the lasting power of attorney, if necessary
Guiding the attorney to act in the donor’s best interests if they lose capacity

A solicitor’s main role is to advise on who should be appointed as attorneys, often family members or close friends. They will then guide the chosen attorney on their various responsibilities.

This can range from anything including managing bank accounts and paying bills, to making decisions about medical care.

In addition, solicitors offer guidance on what happens in the instance a donor lacks capacity to make their own decisions.

This means that they will explain how attorneys must always act in the donor’s best interests, taking into account their past and present wishes, feelings, beliefs and values.

Choosing the Right Power of Attorney Solicitor

When choosing a power of attorney solicitor, key things to consider include:

Expertise – Source a solicitor who specialises in power of attorney law who will have accurate information
Experience – Choose someone extensive experience in drafting these documents
Clear communication – They should explain the process in plain English
Costs – Ask for a clear breakdown of their fees
Personal rapport – Make sure that you feel comfortable talking to them

During your initial consultation, the different types of powers of attorney, the legal implications, and the registration process will be explained to you by the solicitor.

They should also discuss the potential costs involved, often offering a fixed fee for their service, meaning that you don’t face any surprise fees down the line.

"A power of attorney is a legal document that lets you (the 'donor') choose someone you trust (the 'attorney') to have the legal authority to make decisions on your own affairs."

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Legal Implications and Considerations

Key legal implications and considerations when creating a power of attorney include:

The attorney has a legal duty to always act in the donor’s best interests
A lasting power of attorney must be registered before use, in case the donor loses capacity
The donor must have mental capacity when creating the power of attorney
It is necessary that attorneys keep the donor’s money and property separate from their own
Disputes can be brought before the Court of Protection

Before it can be used, the lasting power of attorney must be registered with the Office of the Public Guardian. As part of the safeguarding procedure, the donor or a designated representative has the option to object to the registration during the registration process.

In addition, there are also legal obligations in place for the attorneys, who must follow the principles of the Mental Capacity Act 2005.

This means that they are required to act in the donor’s best interests, considering the donor’s past and present wishes and feelings to make decisions as carefully and respectfully as possible.

Furthermore, it is essential that attorneys maintain detailed records of all decisions made on behalf of the donor. This provides transparency, consequently demonstrating that the attorney is acting in the donor’s best interests.

Understanding Lasting Powers

The lasting power of attorney is a vital legal document that comes in two different variations, which include the financial affairs lasting power and the welfare lasting power.

The financial affairs lasting power of attorney offers an attorney power to make financial decisions on behalf of the donor. For example, they can manage bank accounts, pay bills, and deal with other financial matters.

On the other hand, a welfare lasting power of attorney appoints the attorney with the power to make decisions about the donor’s health and welfare only if they lack capacity.

This could include decisions about medical treatment, care arrangements, living conditions and other daily needs. Alternatively, unlike a financial affairs lasting power, it’s essential to note that a welfare lasting power cannot be used until the donor loses capacity.

In cases where a person may become mentally incapable of handling their own financial matters, establishing these powers can be a wise step towards the future.

People can be guided through this process by a power of attorney solicitor, who will make sure that all legal requirements are fulfilled and that the donor’s interests are safeguarded.

Moreover, it is a beneficial idea to choose more than one attorney. This is because it can create a system of checks and balances, where each attorney keeps an eye on the decisions of the others. Therefore, this can provide an additional layer of protection for the donor.

Enduring Powers and Ordinary Powers

Enduring powers and ordinary powers are two types of power of attorney that were used prior to October 2007.

An enduring power of attorney differs from a lasting power, as they continue to be valid even after the donor loses mental capacity. Conversely, an ordinary power of attorney loses its validity once the donor loses mental capacity.

It is important to note that whilst an enduring power can no longer be created, those made before October 2007 are still valid. Moreover, enduring powers need to be registered with the Office of the Public Guardian if the donor starts to lose mental capacity.

Whilst ordinary powers of attorney are still often used to this day, they are typically used for temporary situations. For instance, a period of hospitalisation or a trip abroad. They are a good idea for short term cases, as they can be a cost-effective way to manage one’s affairs.

Nominating an Attorney

Nominating an attorney is a process that requires a considerable amount of careful thought. Given the substantial power bestowed upon them, choosing an attorney should not be done in a rush.

This is because the donor needs to have faith that the lawyer will represent their interests, particularly in the event that the donor loses mental capacity.

Often, family members make reliable attorneys as they are likely to have the donor’s best interests at heart. However, the nominated attorney could also be a close friend or a professional, such as a solicitor.

Remember that it’s wise to discuss the role with the proposed attorney whilst the donor is still of good mind, so that their wishes can be carried out later on in their life.

To nominate an attorney, you will first need to complete an attorney document. This legal document outlines the powers that the attorney will have, as well as any restrictions or conditions that the donor wishes to place on these powers.

Financial Benefits and Protection

Having a power of attorney in place can help to ensure that a person’s financial matters are handled appropriately in the event that they are unable to do so themselves.

This could include managing bank accounts, paying bills, and even claiming state benefits on the donor’s behalf.

In some cases, the attorney may need to decide on certain benefits for the donor. This occurs if they’re unable to manage their own financial affairs. For example, they might carry out applications for benefits that the donor is entitled to but has not yet claimed.

A power of attorney solicitor can provide advice on these matters, ensuring that the donor’s financial interests are protected at all times.

Furthermore, the attorney also has a role in protecting the donor’s assets. This could involve selling property to pay for care costs, or investing money to ensure the donor’s financial future.

Legal Proceedings and Capacity Assessments

If there is doubt about a person’s mental capacity, a doctor’s certificate may be required. This document is usually acquired during a capacity evaluation, certifying that the individual is incapable of making particular decisions when they need to be made.

There may be situations where the court must get involved. For example, the Court of Protection may be consulted in a dispute concerning the registration of a power of attorney. This court offers an extra degree of protection, providing the authority to make decisions on behalf of individuals who lack capacity.

It’s also important to note that a person can only choose a power of attorney if they have the mental ability to make an informed decision, meaning that they understand the potential implications.

If there is any doubt about this, a mental capacity assessment will need to be carried out. This assessment is usually carried out by a healthcare professional, such as a psychiatrist or a social worker.

The Role of Family Members

Family members often play a crucial role in the power of attorney process. This is because they typically have the most in-depth knowledge of the donor, and are therefore the most inclined to act in their best interests.

However,even though a family member would seem like the best choice for an attorney, it’s important to take into account their capacity to properly handle the donor’s affairs.

It is quite common for a donor to appoint more than one family member as attorneys. This is often a beneficial idea as it ensures each attorney is checking on the other, meaning that decisions can be made collectively and in the best interests of the donor.

However, having more than one attorney is only successful if they can all cohesively work together and avoid any potential conflicts.

Moreover, family members appointed as attorneys should be prepared for the chance that they will need to make difficult decisions on the donor’s behalf if they lose capacity. This could relate to the donor’s property, financial affairs, or personal welfare.

As we know, the attorney should always act in the donor’s best interests in such cases, considering what the donor would have wanted.

Family members should also be aware of how demanding the job of an attorney can be. This is because it can take a lot of time and comes with a lot of responsibility. As a result, before making any decisions, it’s a good idea to talk about the role with the suggested attorney.

Cost-Effective Legal Solutions

Using a power of attorney solicitor can be a cost-effective solution for managing your legal affairs. With their knowledge and expertise, they can guide you through the process of creating a power of attorney.

Furthermore, this helps to ensure that all legal requirements are met and that your interests are protected.

It should be noted that whilst there are costs involved in appointing a solicitor, these can be mitigated by the peace of mind you gain knowing that your affairs will be managed professionally.

A solicitor’s expertise can also help to avoid any potential legal issues in the future, saving you time and money in the long run.

However, it is crucial that you discuss potential costs with your solicitor from the outset. Many solicitors offer a fixed fee for their services, providing clarity on costs from the start.

This can help you to budget for the process and ensure that you get the best value for your money, without facing any surprise fees down later on.

Planning for Loss of Capacity

For many, the process of planning for the event of losing capacity can be a daunting prospect.

However, it’s an essential step in ensuring that your affairs are managed according to your wishes if you’re unable to make decisions for yourself. This means that creating a power of attorney is a key part of this process.

To begin the process, you should typically discuss your wishes with the people close to you. This could be family members, friends, or a trusted adviser. It is vital that they understand your wishes, and are willing to act on your behalf in the event that it is needed.

The next step is to engage a power of attorney solicitor. This is because they will provide insights on how to create a power of attorney, ensuring that it accurately reflects your wishes.

They can also help you understand the responsibilities of an attorney, as well as how they can act in your best interests.

Finally, it’s important to keep your power of attorney documents in a safe and secure place and keep your attorneys informed of this location. This will ensure that they can act quickly if you lose capacity.

In addition, reviewing your power of attorney periodically can prove useful. For instance, every 2-3 years. As circumstances and wishes may evolve over time, regular reviews help to ensure that the power of attorney continues to reflect your current situation.

Additional Powers and Responsibilities

When creating a power of attorney, you also have the ability to allocate additional powers if you wish. This could include the power to make gifts of your money or property, or the power to make decisions about life-sustaining treatment.

However, it should be noted that any additional powers beyond standard financial and welfare decisions must be expressly authorised in the power of attorney document. If not explicitly specified, the attorney will not have authority to use any powers.

As previously mentioned, the role of attorney comes with a number of responsibilities. They have to make decisions with your best interests in mind at all times, taking into account both your current and past requests.

They must also keep your money and property separate from their own, keeping accurate records of their dealings with your affairs.

Whilst giving an attorney additional powers can be a good way to ensure specific wishes are followed if you lose capacity, it is necessary to consider the potential risks. Therefore, you should choose your attorney carefully.

Choosing the Best Course of Action

When handling your legal affairs, it can be difficult to decide which course of action is best. There are a lot of things to consider, such as your financial status, future goals, and state of health right now.

Creating a power of attorney can be a sensible step if you’re concerned about losing capacity in the future. This is because it guarantees that your wishes will be carried out, providing you with the freedom to designate a trustworthy person to handle your affairs.

Seeking a power of attorney solicitor is also often recommended. They can provide expert legal advice, guide you through the process, and ensure that your interests are protected.

Moreover, ensure that you review your power of attorney regularly to check that it still reflects your wishes. This is particularly emphasised if your circumstances change, such as if you get married, divorced, or have children.

FAQ

1. How can using a power of attorney solicitor be cost-effective?

Solicitors are professionals with extensive legal knowledge. They can guide you through the complex process of creating a power of attorney, guaranteeing that all legal requirements are met and your interests are protected along the way.

Whilst it has to be noted that there are costs involved in appointing a solicitor, these are often outweighed by the peace of mind you gain from knowing that your affairs will be managed professionally if you become unable to do so yourself. A solicitor can also help to avoid any potential legal issues down the line, which can save you time and money in the long run.

2. Are there cost-effective alternatives to hiring a power of attorney solicitor?

Although it’s usually best to hire a power of attorney solicitor, there are less expensive options. A legal document service is what some people decide to use. This means that for less money than a solicitor, you can draft a power of attorney with the aid of these services.

However, these services rarely provide the same level of guidance and support as a solicitor. For example, if your situation is complex, a legal document service may not be appropriate. This means it’s always best to seek professional advice before making a decision.

3. What is the most cost-effective way to manage multiple powers of attorney?

If you have to handle several powers of attorney, hiring a solicitor could prove more affordable. They can guarantee that all powers are properly registered and set up by providing knowledgeable counsel and direction.

Selecting the same attorney or attorneys for each power can also help you to save money. This eliminates the need for several participants, which reduces the possibility of expenses.

4. Can I save costs by creating a power of attorney myself?

Whilst it is possible to create a power of attorney yourself, it’s not usually recommended as the process can be complex. Therefore, mistakes can be costly. If the power of attorney is not set up correctly, it may not be valid. This could lead to complications if you lose capacity and your chosen attorney is not allowed to act on your behalf.

5. How can I ensure the power of attorney process is cost-effective?

Knowing the costs and how to control them is crucial to making sure that the power of attorney procedure is economical. This covers the price of hiring an attorney, any associated court costs, and the price of registering the power of attorney.

Consequently, it’s also a good idea to talk about the possible expenses up front with your attorney. A fixed fee is often offered by solicitors, giving clients upfront cost clarity. By doing this, you can make sure that you get the most for your money and budget for the procedure.

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