We often find that only 40% of people eventually get around to writing their Will. However even less get around to getting a Power of Attorney (PoA) in place.
Having a PoA lets you plan what you would like another person to do for you in the future should you become incapable of making decisions about your own affairs. PoA is the term for a written document which includes a certificate signed either by a solicitor practise law or by a registered UK medical doctor who holds a licence to practise.
Here are 5 important points to take into consideration when creating your PoA:
1. My mental capacity is perfect.
Although today the common concern is dementia and Alzheimer’s you should also consider your mobility. It may be that it’s not as good as it was or you may be housebound and need assistance for banking or shopping from someone.
2. I don’t want someone in control right now.
You may think as soon as I do a PoA, my attorney can do what they want, even if I’m fit to do so. The benefit of having a professional create your documents is that it can be drafted and registered but will only come into effect in the event you lose capacity. While you are fit to make your decisions, your attorney will have no say in any matters. This is referred to as the springing clause and is the preferred option for most people.
3. Have you ever said to yourself...
When I am unwell or have lost capacity then I’ll get myself a PoA. Unfortunately leaving it too late can be disastrous. You must do your PoA while you are mentally fit to do so. Without a Power of Attorney, nobody has an automatic right to make decisions on your behalf in the event that you can no longer do so yourself. Someone might even have to go to court for a guardianship or intervention order before they could act on your behalf. This can limit the powers, can take a long time, and also be very costly.
4. I don’t know who to choose.
You can select up to four people to become your attorneys and take over your affairs but you should choose wisely as some decisions they might need to make could be life-changing.
5. Wills and a Power of Attorney are separate documents.
Firstly, an attorney has no say in your Will. Secondly your Will does not define or set out powers like a PoA. As Wills only become active when you die, however, a Power of Attorney document is no longer required then. Finally, your attorney can be someone who you think is very reliable and is willing to help but doesn’t need to be named in your Will. Often people think their executors need to also be their attorneys, but this is not the case. You may have a simple estate that with the help of a solicitor your family can take care of matters when you pass away, however you may feel it's better for your friend(s) or an extended family member to assist you with your Power of Attorney if they are closer in geographical location.
At this point, the document is known as a Continuing and Welfare Power of Attorney; meaning that it forms two parts. The continuing aspect of this looks after the financial and property affairs whilst the welfare aspect is in place to look after your personal welfare. Once this has been done, it must be registered with the Office of Public Guardian.
In addition to drafting the document, you should expect that most professionals (a solicitor or doctor) will complete the registration form on your behalf and file for registration. While the guidelines from the Office of Public Guardian suggest that this process will be completed within 30 days however it’s known to take as long as 60 to 90 days as a result of an increase in the number of people applying for a Power of Attorney.
If you would like more information on why you should write a Will, why not reach out to one of our team for a free, no obligations discussion.
Author: Scott Ewart