No one likes to think of getting to the stage of their life when they lose their mental capacity, however this can and does happen – whether through an accident, illness or old age.

To ensure they retain some control over their way of life, more and more people are registering what is known as a lasting power of attorney, a legal device which allows you to choose someone you trust to manage your affairs if you lack mental capacity.

You can select one or more trusted family members or friends to act as your attorney, however, as Donna Rowland, a Partner in the Private Client department at WBW Solicitors in Newton Abbot, explains there are definite benefits in appointing a professional to take on this role as well.

What is a lasting power of attorney?

There are two types of lasting power of attorney:

• A financial lasting power of attorney – authorises your attorney to deal with issues such as managing your bank accounts and investments, paying your bills, applying for benefits, and buying and selling your property.
• A health & welfare lasting power of attorney – allows your attorney to make decisions on day-to-day issues such as eating, clothing and medical care, as well as more important matters like where you should live and whether you should receive life-sustaining treatment.

In either form of lasting power of attorney, you can set out in writing how you would like your affairs to be managed while you are incapacitated, and you can include any guidance and restrictions on your attorney’s powers that you think are necessary. Your attorney only makes decisions for you if you cannot make them for yourself and they have a duty to help you make your own decisions where possible.

What are the advantages of a professional attorney?

The attorney role carries a huge amount of responsibility and can be both time-consuming administratively and may involve some difficult decision-making. In addition, your attorney can be held personally and financially responsible if they breach their legal duties, and even face criminal charges if they neglect or ill-treat you. Many family members or friends may be reluctant or unable to take on such a position, or you may not wish to inflict such stress on them. Appointing a professional attorney, such as a solicitor, who understands their legal duties and the consequences of contravening them, can therefore be an attractive option.

Our professional attorneys have a wealth of experience in managing other people’s affairs – no matter how complicated their circumstances. We are used to making complex decisions about another person’s finance or health and welfare. We also have detailed knowledge about tax reliefs, property management, benefits, and the health and care support that can be taken advantage of on your behalf, which a layperson may not necessarily know about.

Another distinct advantage of a professional attorney is that they are independent and will remain impartial, running your affairs according to your wishes, whatever decision needs to be made on your behalf. This is in sharp contrast to a relative or friend who may be swayed by emotion and could face constant criticism from other family members about their decision-making.

If you appoint a friend or family member as your attorney, the role is unpaid. Appointing a professional attorney does mean that you will have to pay for any work they do. However, they will not receive any payment unless you lose mental capacity and require them to take up an active attorney role.

You can appoint more than one attorney, so another solution is to appoint a professional attorney alongside a family member or friend. This may help keep costs down as, under the terms of the lasting power of attorney, you could stipulate that the non-professional carries out the day-to-day management of your affairs, but should always turn to the professional for advice when needed.

How a solicitor can help

It is highly advisable to seek legal advice beforehand. Our specialist solicitors can ensure this legal document is drafted according to your wishes and properly registered, and we can help you select appropriate attorneys, or serve as your professional attorney if that is what you desire.

For more information on lasting powers of attorney, or any other private client issue, contact Donna Rowland at WBW Solicitors in Newton Abbot on 01626 202416 or email donnarowland@wbw.co.uk.

WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.