Powers of Attorney and guide to Financial Matters for the Elderly
managing your future :
Every adult has the right to manage their own financial affairs : sometimes, however, our ability to do this decreases as we grow older : this may be is caused by illness, disability, or an accident : there are practical steps you can take in preparation.
If this affects you, or someone close to you, you should consider getting legal advice : we can help you to get your affairs in order and make your wishes for the future known : this may involve possibly writing a Will or choosing someone to take power of attorney (legal authority to act for you) over your financial affairs, if needed.
This can lighten the burden on relatives or carers who might otherwise find it difficult to make complicated decisions on your behalf.
Where there is not enough time to take these precautionary steps, or if a person is already “incapacitated” (unable to handle their own financial affairs), it is usually the relatives of the person who need advice : in these circumstances there are a number of options available : one of these options is to contact the Court of Protection, which can make arrangements for managing the person’s financial affairs : we can advise on the best course of action in your case.
what the solicitor will need to know :
If you are the client, we will need to know :
- whether you have made a Will
- who you would choose to handle your financial affairs : if this is necessary
- what assets or income you have
- any special wish about how you want your property or assets to be handled
- whether you have a particular medical condition : GP consent required
if you are getting advice on behalf of an elderly person, we will first need to confirm with the elderly person that they want to proceed and get the appropriate information : once we have had chance to consider the information, we can explain your options to you : these may be as follows :
Ordinary Power of Attorney
This is a legal way of giving someone else the power to manage your financial affairs when it is difficult for you to manage them yourself, perhaps because of a physical disability : usually you appoint someone you trust, such as a close relative, friend, or solicitor as your Attorney.
Nobody can simply take a power of attorney : you have to donate it willingly : the Donor decides who to appoint as attorney, and can cancel the arrangement at any time.
The Power of Attorney only applies if you are fully aware of the implications of the arrangements : it will come to an end if you become mentally incapable of managing your financial affairs.
Lasting Power of Attorney : LPA
A lasting power of attorney goes one step further than an ordinary power of attorney, because it carries on, or lasts, even after you have become unable to manage your affairs – whether temporarily or permanently, or because of an illness, disability or accident.
Lasting Powers of Attorney have now replaced enduring powers of attorney, although valid enduring powers of attorney made before 1st October 2007 can still be used : no new enduring powers of attorney can now be made.
For a lasting power of attorney to be valid, you must fully understand the implications of the arrangement at the time of making it : a certificate provider will need to sign a certificate to say that you are aware of the implications and that nobody is pressurising you into making a lasting power of attorney.
A certificate provider is someone who has known you or at least two years, or someone with specialist skills in assessing if a person is incapacitated.
The attorney must be at least 18 years old and must not be bankrupt if appointed to make decisions about a person’s property and money : more than one attorney can be appointed at the same time.
Your attorney cannot start making decisions on your behalf until the lasting power of attorney has been registered by the Office of the Public Guardian, who will make sure your attorney is aware of his or her duty to act in your best interests.
The Office of the Public Guardian will charge a fee for registering the lasting power of attorney : currently : £120.00.
Personal and Welfare decisions
A separate lasting power of attorney can be made to give your attorney the right to make personal welfare and medical treatment decisions on your behalf if at some time in the future you are unable to make those decisions yourself.
Consulting a solicitor is the best way to make sure a lasting power of attorney is properly set up and registered, and that it is in the best interests of the donor.
The Court of Protection
if someone is mentally incapable of making a particular decision at a particular time, and they havent made a lasting power of attorney, and the decision isnt one that can be made on an informal basis, the matter can be referred to the Court of Protection.
The Court may either choose to make the decision itself on the person’s behalf, or choose someone else, known as a “deputy”, to make the decision for them : where the court appoints a deputy to manage someone’s property and financial affairs an ongoing basis, the deputy usually has to keep accounts, enter into a security bond, and report to the Office of the Public Guardian.
The Court of Protection charges a one-off application fee, and the Office of the Public Guardian charges a yearly fee to cover the cost of supervising the deputy’s work.
Appointeeship
If a person is incapacitated and entitled to receive a retirement pension or other state benefits, the Department for Work and Pensions can choose an “appointee” to receive those benefits on that person’s behalf : the appointee can be a relative, friend or someone from the caring professions : such as the local authority social services department.
They will be asked to produce some proof that the claimant is incapacitated, such as a doctor’s certificate : there is no fee involved in this service.
Other financial matters
We can advise on a wide range of other legal matters affecting elderly people : for example :
- Equity-release schemes : where you can unlock some of the capital tied up in your home
- Long term care : funding arrangements
- Estate planning : by making a Will or lifetime gifts
Costs
Charges for the work outlined above can depend on how straightforward (or complicated) the terms of the requirements may be : we are happy to provide no-obligation guideline costs on request.