A strength of Attorney is a binding legal document, one that effectively allows someone you nominate to make certain kinds of decision and act on your behalf. Powers of Attorney are usually used if you either become unable to work for yourself, or you do not wish to act for yourself.
There are many reasons why you might choose to make one, including being out of the country or hospitalised for an extended period and you need someone to mind your assets while you are away; or to protect yourself and your assets should you lose mental capacity.
However, a lot of us put this job off due to, among other things, certain misconceptions.
This article aims to debunk some of the most commonly held misconceptions regarding a strength of Attorney.
Misconception One: Attorneys, once nominated, cannot do in any case they like
This is one of the main fears people have about giving someone else control over their assets. However, it is thoroughly unfounded as attorneys are heavily restricted in what they can and cannot do.
There are various checks and balances in place to make sure an attorney does not abuse their position, including a set of rules regarding getting the strength registered so it can be used at all.
The first set of restrictions come from you. When creating a strength, specifically a lasting strength, there is an opportunity for you to put as many or as little restrictions on your attorneys. For example, if you are setting up a financial lasting strength, to allow our relatives to look after your finances should you lose capacity, then you can state clearly on the paperwork that while your attorneys can do X, Y & Z they cannot sell your home, or they must all decide together before spending an amount over £X.
The second set of restrictions comes from the Office of the Public Guardian which lay down clear rules for how an attorney must behave, including preventing them acting outside the strength given in the strength and making sure they always act in the donor’s best interest.
Misconception Two: You must use the strength of Attorney the moment it is made, or You cannot make a strength of Attorney until you know you will need it soon.
A lot of us put this job off as we are not in the position where we need it now or (to our knowledge) in the imminent future.
Unfortunately, life doesn’t always give you warnings and powers of attorney are not just for the elderly who may have concerns about dementia. Anything can happen that could cause you to need an attorney closest, including a sudden and unexpected hospital admittance, an unplanned trip out of the country, or, tragically, an accident which causes you to lose capacity.
It is wise to create a strength long before it is needed, especially a lasting strength of Attorney (expressly designed for a loss of capacity).
It is thoroughly possible to write and sign a lasting strength but keep keep up of it until you need it or want to use it. This is because for a Lasting strength to be used it must be registered until it is registered it is just a piece of paper with no strength or purpose, and it can sit in a drawer until needed.
You could easily create and sign a Lasting strength when you are in your 30’s and not register it until you need it in your 70’s.
Misconception Three: You can wait until someone loses capacity before making a Lasting strength of Attorney
This ties in with the above misconception and is completely wrong. Making this mistake can cost you and your loved one’s thousands of pounds.
To make a lasting strength or a general strength the person making it must have capacity. There is no way around this. If you lose capacity, you cannot make a strength of Attorney and your loved ones must apply for what is called a Guardianship of you and your assets, which costs over a thousand pounds and takes several months to sort out.
Considering that you could put together a strength yourself for free or use a solicitor for £200 (depending on the firm, shop around) it should be a no brainer that this is the superior document.
It is also worth noting that if you make a general strength and then lose capacity your general strength loses all its strength. If you had made a lasting strength when you had capacity then afterward lose capacity your attorneys can register the Lasting strength of Attorney with the Office of the Public Guardian closest and start helping you with your finances and care.
Misconception Four: A strength of Attorney is for Life
This simply is not true.
There are different types of strength of Attorney, Lasting and General. Lasting powers (you might have guessed from the name) are usually long term. However, a general strength is not.
A general strength is a document that you can set up to allow someone to look after an affair of yours while you are not able to, if, for example, you are out of the country, hospitalised for a few months or unable to leave the house for a while. A general strength gives someone else authority to act on your behalf for a particular reason, to perform a specific task or for a specific length of time. As soon as you become able to manage your affairs again, you can destroy the general strength.
Misconception Five: You can only have one attorney
The role of attorney is challenging at times, and there is a lot of responsibility.
So instead of put all of that responsibility onto one individual you can spread that about by having more than one attorney. This second person is called a joint attorney.
You can appoint any number of attorneys in the same strength, and you can specify if they can act on their own separately or if they must cooperate and come together to decide. You can have them act jointly on some issues such as sale of character but have them work singly on all other matters there is a lot of flexibility, and it is thoroughly up to you.
In conclusion, there is a lot to consider when making a strength of Attorney, but it is not a decision that should be put off.