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Putting Power of Attorney in the spotlight

Last Tuesday night, “Kate Garraway: Finding Derek” was aired on STV, which showed the struggles that she and her family faced following her husband Derek’s diagnosis and year-long battle with Covid. Kate’s heart-breaking story has been made even more complicated by the lack of legal protection she and Derek had in place. The presenter was unable to access her husband’s funds to manage them on his behalf or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection.

Understandably, we hope that neither we nor our loved ones lose capacity to make our own decisions and we probably have not thought about the consequences if we do. However, Covid-19 in general has, for many, brought into sharp focus the fact that we do not know what is waiting for us around the corner. “Finding Derek” highlights the reality of the issues faced by those who do not have a Power of Attorney in place when the unimaginable happens.

To avoid the difficulties which Kate faced we would suggest that our clients consider granting a power of attorney.

What is a Power of Attorney?

Research by Solicitors for the Elderly, shows that 65% of us think our next-of-kin will be able to make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Power of Attorney is in place. Whilst there’s been a rise in the number of enquiries made about Powers of Attorney during the pandemic, only 22% of people in the UK actually have one.

A power of attorney will enable your chosen attorney(s) to make decisions, if you are unable, regarding your finances and personal welfare. This is a big decision to make and understandably many people may have reservations about giving so much authority away. However, it is there to protect you so that your affairs can be handled smoothly and will only ever be used with your permission or when you do not have the capacity to act or make decisions yourself.

What do you need to think about?

So long as you have capacity to do so, you can grant a power of attorney and it is probably far easier to do than you might think. When thinking about preparing a Power of Attorney there are three main considerations:-

(1) Who your attorney(s) should be – appointing someone as your attorney can be a big decision as ultimately they will have the power to make decisions for you if you were unable to make them for yourself. It is therefore important that you appoint someone you can trust and who will act in the way you would yourself if you were the one making the decisions. You can have primary attorney(s) and substitute attorney(s) if you like, for example, you may wish to appoint your spouse but also your children.

(2) What powers your attorney(s) should have – You should think about whether your attorney(s) should make decisions about (a) your welfare, health and care needs; (b) your financial affairs; or (c) both of these combined. The power of attorney will list the specific powers you are giving to your attorneys. It is advisable to include as many as possible as if there is something that they are not specifically given the power to do but later find they need it, it is a much longer and more expensive process to resolve it.

(3) How should your capacity be determined? Thought should be given to who is responsible for determining when you have lost capacity to make your own decisions: should this be your attorney(s) using their own judgement, or would you prefer for a doctor to certify this medically?

We can help guide you through the process and advise you on what is best for you based on your needs.

Once a Power of Attorney is in place, your Attorney can help you with the financial elements from day one, but only with your permission. The welfare side will only come into effect once it has been deemed that you have lost capacity.

At Balfour + Manson we often liken a Power of Attorney to an insurance policy: we go through our lives hoping to never need it, but if and when you do, you and your loved ones are protected.

If you would like to get more information on putting a Power of Attorney in place, please contact a member of our Private Client Team.