Claire Maxwell F.C.Inst.L.Ex. is a fully accredited member of Solicitors for the Elderly and Dementia Friends Champion and has recently joined THW Ltd in our private client department. In light of the current situation, Claire has considered the issues that may affect your ability to manage health and finance decisions if you are ill or having to self-isolate.
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 email@example.com 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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