Opinion

Dispelling the myths of Powers of Attorney

10th May 2019

Dispelling the myths of Powers of Attorney

Planning for a future in which someone else makes important decisions on your behalf is often associated with the elderly, the wealthy or basically anyone else but you.

However, putting in place a power of attorney can give a peace of mind that someone you trust is in charge of your affairs if you are no longer able to manage them yourself – whether on a temporary basis, or worse, a permanent one.

Anyone aged 18 or older who has the mental ability to make financial, property and medical decisions for themselves, can arrange for someone else to make these decisions for them in the future when they may not be able to.

Laura Horton, a trainee solicitor at Higgs & Sons, hopes that by dispelling some of the myths around powers of attorney more young people will put in place this simple legal document so that loved ones are relieved of the burden should something happen.

Laura said: “It is easy for young people to dismiss powers of attorney as not relevant to them, when actually they could play a very important part in their future.

“It’s not all about strokes or dementia. Adrenalin junkies, young people taking part in high risk sports or living with a mental health condition, alcohol or regular recreational drug use – all of these social patterns could lead to a young person finding themselves no longer able to make important decisions for themselves.

“For example, without powers of attorney in place, your family or partner will not simply be able to access your bank account or speak to your landlord or consent to a medical procedure – they have to apply through the Courts in order to act on your behalf, and this can be costly and time consuming.

“Since I started my training contract, I have seen several incidents of where a power of attorney could have made all the difference.”

Here Laura takes a look at some of the most common misconceptions around powers of attorney that may prevent people from putting them in place.

 

My next of kin gets to act anyway - WRONG

  • Next of kin is not actually a legal term – no-one has a legal ‘right’ to be the next of kin.
  • Family members cannot automatically assume that they can deal with your affairs or make decisions about your welfare.  If someone has lost capacity, a family member cannot simply ring up the bank and get authority to deal with their accounts, they need a legal document. For instance, if a man suffers a stroke, his wife CANNOT access his bank accounts.
  • If a person has already lost mental capacity, it is too late for a power of attorney. The only avenue now is to apply for deputyship, a difficult and long procedure which involves applying to the Court of Protection for authority.
  • Not everyone wants their family to act anyway : the younger generation might prefer their partner or friends to act on their behalf rather than their parents.

Only old people need powers of attorney - WRONG

  • Young people are more likely to be involved in high risk leisure pursuits such as rugby, horse riding, motor racing, skiing or climbing.  If they had an accident, who would make decisions about their health and welfare or their finances?
  • Example – what if you have a quad biking accident while travelling abroad?
  • Example – perhaps you have an unknown heart condition that leads to an aneurysm.

You only need a power of attorney if you have dementia - WRONG

  • There has been a steep rise in the number of young people experiencing mental health illness which may create issues over their lifetime.
  • For those that know you are suffering from mental health, it can be sensible to consider having powers of attorney in place in case you are temporarily incapacitated as a result of your illness.

If I sign a power of attorney I lose control - WRONG

  • A health and welfare power of attorney can only be used when a person lacks mental capacity.  Only then can your attorneys make decisions on your behalf.
  • Mental capacity is decision specific and so powers of attorney can come into use at different times of your life.  For example, a person may have the capacity to make decisions about their diet but not the capacity to consent to a surgical operation.
  • A property and financial affairs power of attorney can be used when a person lacks capacity but ALSO where a person provides consent for their attorney to act.  Example – not feeling too well, your attorney could pop down to the bank for you.

Just for wealthy people - WRONG

  • Without a power of attorney, your family/partner/friends cannot access any of your finances.
  • Many of the younger generation, struggling to get on the property ladder, find themselves renting – who will handle their tenancy agreements?
  • Who will handle debts and student loans if you are not able to?

Laura concluded: “Making a power of attorney is not about giving away independence, it’s about taking control, being self-aware and putting in place an insurance document.

“In practical terms, I believe it is more important than a Will and it’s never too soon to act. I’m under 25-years-old and I am putting both types of power of attorney in place for myself.”

If you would like more information, contact Laura Horton or a member of the Private Client team at Higgs & Sons on 0345 111 5050.

 

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