Claire writes: “While the
situation with Coronavirus is undoubtedly improving, the impact of social
distancing, self-isolation or a stay in hospital, all have the potential to
make it much more difficult to manage your affairs. Whilst friends and family
will undoubtedly pitch in during these difficult times, there are some
decisions which, under English law, we can only normally make for ourselves.
Here is a
non-exhaustive list of some of these activities:
- Opening or closing a bank
account
- Moving money between
accounts, including to pay bills
- Collecting pensions and
benefits
- Deciding where to live and
selling, buying, renting or leasing property, including renewing or ending
a tenancy
- Arranging and consenting to
medical treatment and care
- Managing a company of which
you’re a director
- Managing a trust of which
you’re a trustee
As a
result of Covid-19 a lot of people are now asking whether they can legally
delegate any of these decisions to a friend, family member, or even a
professional such as a solicitor. It is understandable that during such a time
considerations about finances and/or health and care decisions are at the
forefront of our minds.
A
practical solution to this issue is a power of attorney – a legal document that
delegates some or all of your decision-making powers to someone else so they
can act on your behalf. You can create different powers of attorney to allow
someone else to make business and financial decisions for you, or health and
welfare decisions.
We have
put together some information below on powers of attorney, which we hope will
help if you are worried about managing your affairs during the coronavirus
epidemic and indeed going forward”
Powers of
attorney for finance and business decisions during the coronavirus epidemic
You may
be concerned about the ability to run your business while still complying with
the Government’s latest instructions to “stay alert”.
For
example, you may be able to work safely at home, but you face a practical issue
in arranging for documents to be signed. Alternatively, you may be
self-isolating and worried about the ability of a family member being able to
assist you with your finances and liaise with the bank on your behalf.
I will
address below the types of powers of attorney which can help you deal with
these problems and how they could be useful during this difficult time and in
the future.
General
Powers of Attorney
You can
put in place a General Power of Attorney to appoint an attorney to deal with
your property and financial affairs or for a specific commercial purpose, for
example, allowing your attorney to sign the documents to deal with the sale of
land or property on your behalf. The document can be drafted widely, to
enable your attorney to do anything lawful on your behalf, or it can be more
limited, so you restrict their authority to a particular matter or series of
transactions.
While
useful, it is important to note that a General Power of Attorney will no longer
be valid if you lose capacity to make decisions for yourself.
Lasting
Powers of Attorney for Property and Financial Affairs
Lasting
Powers of Attorney enable you to appoint an attorney to assist you with your
property and financial affairs. The crucial difference between Lasting
Powers of Attorney and General Powers of Attorney, is that Lasting Powers of
Attorney can continue to be used once you have lost mental capacity.
Lasting
Powers of Attorney need to be registered with the Office of the Public Guardian
before they can be used, and the registration process itself can take 8-12
weeks (although, in our experience at the present time registration may take
slightly longer).
It is
possible to put in place a Lasting Power of Attorney for Property and Financial
Affairs for your personal assets and separate document for your business.
If you are a business owner and you become incapacitated, a Lasting Power of
Attorney which covers your business means that you will have thought about and
appointed an appropriate person to take over on your behalf. This will
help to ensure continuity and allow essential business operations to
continue. Putting in place a business Lasting Power of Attorney would not
affect your ability to continue to manage the business whilst you are still
able to do so; it is a safeguard for the future.
In light
of the current situation with the virus and due to the relatively long
registration period for Lasting Powers of Attorney, you may wish to put in
place a General Power of Attorney as an interim measure, with the Lasting Power
of Attorney becoming effective once the registration has been completed.
Enduring
Powers of Attorney
These
documents have been replaced by Lasting Powers of Attorney for Property and
Financial Affairs; however, if you signed an Enduring Power of Attorney before
1 October 2007, the document should still be valid. Although, it is worth
bearing in mind that Enduring Powers of Attorney can only be registered with
the Office of the Public Guardian when your attorney believes that you are
becoming or have become, unable to manage your own affairs.
It is no
longer possible to put in place new Enduring Powers of Attorney, so should you
have any concerns we can review your current document to ensure that it is
valid and is still in accordance with your wishes. However, for various
reasons which, we would be happy to discuss we would urge you to consider
replacing it with a Lasting Power of Attorney.
Trustee
Powers of Attorney
If you
are a trustee, you can under the Trustee Act 1925 (and subject to any
provisions in the trust document) delegate your trustee powers to an attorney
for up to twelve months at a time. This will ensure that decisions about
the trust can continue to be made and the trustee duties fulfilled.
Lasting Power
of Attorney for Health and Welfare
Powers of
attorney have uses beyond your finances, business and property. A Lasting Power
of Attorney for Health and Welfare also allows a loved one or friend to make a
decision for you about care or treatment if you don’t have the capacity to do
so yourself. This is a separate document to the property and financial affairs
Lasting Power of Attorney.
Your
attorneys would act in your best interests and ensure that you are given the
care you would have chosen for yourself.
We urge people to consider writing a separate letter of wishes to give
their attorneys any guidance about how they would wish their health and welfare
to be dealt with if they do not have the capacity to do so themselves. For example, some people may wish to specify
that they would wish to be cared for in their own home as long as possible,
some may wish to specify what foods they like, whom they would wish to visit
them or not visit them – everyone’s wishes and feelings are different and so,
each letter of wishes will be different according to that donor’s feelings.
If you
feel that one or more of the powers of attorney we’ve described would be beneficial
and give you peace of mind, we are happy to help you draw one up. You can contact Claire by email claire.maxwell@thwlegal.co.uk or telephone 01539 721945 and we’ll
book an appointment with you to discuss what you need.
Published 9 June 2020
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