Power of attorney - planning our affairs
It is said that by 2025, 1 in 6 will be diagnosed with Dementia. It is times like Dementia Awareness Week that thought turns to the future and steps are taken to ensure the appropriate provisions are in place for a diagnosis such as Dementia.
At present, there is no cure for Dementia however, measures can be taken to ensure your affairs are in order in the event of a diagnosis. Powers of Attorney (“POA”) are one of the most effective ways of organising your affairs and entrusting your life decisions in the people that are closest to you. A POA is almost like an insurance policy – it is put in place in the hope that it is never used but gives peace of mind in knowing that should the worst happen, the people you trust - family/friends/professionals will be the ones to handle your affairs.
POA relating to your financial/property affairs is known as a 'continuing’ POA and may be given with the intention of taking effect immediately for convenience but most importantly continuing if you ever become incapable of managing your own affairs. A welfare POA allows someone you have appointed to make welfare decisions for you, and these powers cannot be exercised until a particular time such as a medical professional confirming your incapacity. A combined POA can be put in place to deal with both aspects.
That being said, circumstances may trigger the need for a POA for any person over the age of 16. For example, military personnel may create a POA before they deploy overseas so that someone can act on their behalf should they become incapable. Incapacity is not the only reason you may need a POA, though. Those who enjoy travelling may look to set up a POA so that someone could handle their affairs in their absence, simply for convenience. Banks and other institutions will not allow someone to handle your affairs on your behalf without exhibiting a POA.
It should be borne-in-mind that a dementia diagnosis does not necessarily mean that you are no longer able to make important decisions at that point in time. It is often at the point of diagnosis people are motivated to put in place a POA and encouraged by medical professionals to do so.
As symptoms of dementia get worse over time, you may no longer be able to make decisions about your finances, health or welfare and without a POA, any person with an interest in you (family, friend etc.) would have to apply to the Court for a Guardianship Order which can be a long and expensive process.
If a person has been confirmed as mentally incapable and does not have a POA then a guardianship order may be required. This is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for a guardianship order. Guardianship is essential when decisions need to be taken on an ongoing basis for someone who is incapable and does not have a POA. It is best to speak with a specialist ‘Adult’s With Incapacity’ Solicitor in this regard. We at Blackadders are always happy to assist.
Corah Edgar, Trainee Solicitor
Trusts Tax and Care