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Guest Blog: The Power of a Lasting Power of Attorney

By Amanda Perrotton, legal partner, Bell Howley Perrotton

At the beginning of the first lockdown, there was a clamour for Lasting Powers of Attorney as loved ones became incapacitated by the virus and families suddenly were faced with the reality that without essential documents in place they were impotent to take control of someone else’s affairs and manage their lives whilst they were unable to do so themselves.

The courts were blocked with thousands of desperate and hastily made applications from which they have yet to recover.

Fast forward 18 months and with life returning to ‘normal’ and restrictions loosened, those that have yet to do anything about a will or a lasting power of attorney have once again returned once pressing issues to the back burner.  Afterall, we can get to see each other again, and despite the virus attacking young and old, healthy and infirm the mentality of ‘it won’t happen to me’ has once again pervaded our consciousness.

Let me stop you right there.

In the eyes of the law, there is no acknowledgement of the term ‘common law husband/wife,’ and as far as financial Institutions and medical practitioners are concerned a ‘next of kin’ has no authority to make ANY decisions on behalf of someone who has lost capacity whether temporarily or permanently.  Furthermore, the courts have specifically warned of the dangers of what they term ‘informal family arrangements’ both in terms of opportunities for exploitation of a vulnerable relative and ability to impact any decision-making process.

If you are married or in a civil partnership and die without making a will you automatically lose some of your tax exemption to pass an estate on death.  The intestacy rules kick in and if you have a family the part of the estate that passes to your children will, in excess of the Nil Rate Band be taxed at 40%.

If you lose capacity whether temporarily or permanently your ‘next of kin’ has no automatic right to have ANY say in your care.

Your bank WILL NOT disclose information about your spouse unless you have a joint account.  That includes utilities as well as investments.

In order to gain access or have a say you have to make a formal application to the Court of Protection to be appointed.  It is costly, time consuming and limited.

The Office of the Public Guardian is currently running a 20 week delay in registering any Lasting Powers of Attorney, so if you have a nagging doubt or you are keen to be able to assist someone, the earliest this is likely to be resolved is the beginning of March 2022.  This is not going to suddenly improve or significantly reduce any time soon.

My advice?  Make a start which is always the hardest part.  Get something on paper, get in touch with a solicitor and get the ball rolling.