HB - The Legal Corner Magazine #Issue 7

but only if you cannot make these decisions for yourself. The Attorney can, for example, decide whether you live at home with care or in a care home, who you can see, what food you eat, and what medication or operations you have. You must give a specific authority if you wish your Attorneys to have power to make life and death decisions. If you do not make a health and welfare LPA, then the decisions about these important matters will be made by social services or the doctor treating you, in consultation with those interested in your welfare. Some years ago, there was a case reported in the papers where a lady had been living with her daughter who had adapted her home so that her mother could live on the ground floor of her house. However, social services decided that mum was better off in a care home and removed her. The daughter visited the care home, and asked mum if she would rather live with her, and mum said yes. The daughter took her home. As a result, the social services brought in the police who removed mother from the daughter’s house with a blanket over her head into a police car. Subsequently a court allowed the mother to return to live with her daughter, but this situation would have been avoidable if the daughter had been appointed by her mother as a health and welfare attorney. If you do not have a property and affairs Lasting Power of Attorney, then no one will be able to deal with your assets, held in your sole name, if you cannot deal with them yourself. "A poll commissioned by Will Aid involving 2,200 people across the country showed that only 29% had an up-to-date Will with the majority admitting they had not got anything in place."

It will be necessary for someone to apply to the court to obtain an order giving them legal authority to deal with your financial affairs. This can be a lengthy procedure, and is usually more expensive than making an LPA. There are higher court fees, and the need for a security bond in addition to any legal fees in applying to the court. The administration of your affairs becomes more bureaucratic as there is a need to produce annual accounts to the court, pay the annual premium on the security bond and to seek the court’s consent to any actions the attorneys wish to take which are outside the authority of the original court order. On a practical level, if you are a sole proprietor of a business, what would happen if you cannot make business decisions or sign papers? What would happen if the family’s investments were in your or your spouse’s or partner’s sole name and you or they cannot deal with them? The bottom line here is that if you are risk- averse, you should make a Will and Lasting Powers of Attorney.


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