Nobody would dispute that planning for the future is a good idea. When we talk about serious issues involving the ‘what if I weren’t here anymore’ it’s usually framed around leaving a will behind.
What if, however, something happens to you that means that you aren’t able to communicate your wishes cogently? It may be time to discuss Power of Attorney.
What is Power of Attorney (POA)?
Simply put, Power of Attorney is the passing of authority to make decisions from the ‘granter’ to their ‘attorney’ (a trusted person, probably a friend or relative) in the event that the granter becomes incapacitated and unable to make or enact decisions for themselves because of say, illness, injury or disability. (The term ‘Attorney’ is not to be confused with a professional role like that of a lawyer or solicitor – it can be anybody over the age of 18 who has sufficient mental capacity to act on your behalf.)
Talking About The Future
Sometimes having a conversation about the future is difficult. It can be emotional and worrying but it’s far better to ‘bite the bullet’ and have an honest talk about things. For one thing, everybody will know about your views and wishes should something happen. You may already have a diagnosis that means that your condition is likely to deteriorate and it’s sensible to have a contingency plan for when things get beyond your control. There could be serious complications for you and your present carer(s) if you don’t.
POA, in its simplest form, is about trying to make sure that your wishes regarding the way you live are carried out. It is not a definitive document in the way that a last will and testament is. You will be passing over the power to make decisions (that affect you) on a daily basis to a person (attorney) you trust to act in a way that you yourself might like to act.
Whether we like it or not, we all risk facing a future where we are unable to act properly for ourselves. For some, this can be a dreadful prospect, especially if they are already carers themselves, for perhaps their spouse or child. ‘What happens when I go – or if I become incapacitated?’ might well be a question that plays on their mind. The way to solve it, to some extent, is to make sure that provision through a will and/or power of attorney agreement is set up. This way, you protect the people you care for, if something serious happens to you.
It’s difficult not to sound gloomy when we talk about POA. Realistically, though, it’s a necessary conversation. The upside is that having things taken care of can be a soothing thought and can help make things much easier in the future.
Who to choose?
It’s likely that the person you choose as your attorney will already be known to you. It’s unlikely that your attorney will be a professional since they won’t know you as well as say, a friend or relative does. The whole point of POA is that your attorney will make decisions as you might make them. With this in mind, they should be somebody you know that has a similar ‘worldview’ to you and who understands your values. They must also agree to be your attorney and understand what that entails (in your particular case). It might be that they have responsibility for continuing care or financial issues. (These responsibilities can be shared between more than one attorney but this is rare since issues involving medical and financial matters can overlap, leading to disagreements, which is contrary to the idea of POA.)
Your attorney should live near to you. Although you might trust your sister in Australia more than anyone else, she can’t take money out of your bank account for your groceries from the other side of the world.
Even once the attorney has been selected, the agreement can be rescinded if the granter still has the correct level of capacity.
Before It’s Too Late
It’s well worth having a conversation today. If you become incapacitated before you have set things up it will lead to further complications that will take time and money to resolve. The granter of power of attorney must be fully capable of making decisions about the nature of any POA agreement. If they are deemed to be incapable (by a GP) you will have to take legal steps to set things up. In England you’ll have to set up a Deputyship (in Scotland, a Guardianship Order). This will give you similar powers but takes time and the support of the courts to finalise. (Furthermore, even when it is granted, it’s slightly different to POA in that you’ll need to record almost every decision you make on behalf of the person you care for, such as buying food or clothes which is a chore you could do without. In other words, it’s more like a business arrangement rather than a personal arrangement.)
Different types of POA
Whilst there is no POA template to follow, there are certainly topics that are frequently discussed, such as finance and care. Once the agreement has been put together with the help of a solicitor and accepted formally by both the granter and attorney it is held until the point at which it is needed – this is usually at the moment when the granter becomes incapacitated. (This is another key difference between POA and a will, in that a will can only be enacted upon death.) POA can give any ‘authority’ the granter cares to pass over and this can include enacting end of life wishes such as ‘do not resuscitate’ requests; again underlining the care you need to take when selecting your attorney.
It’s easy to bury your head in the sand and keep your fingers crossed that everything will stay the same forever, but it’s unlikely to unfold quite like that. The complications for people that haven’t set up a power of attorney agreement can be very tricky indeed. A joint bank account for example may become literally blocked to one of the signatories if the other becomes incapacitated. This might be the place where savings for a rainy day are kept and yet you won’t be able to access them without difficulty. (The rules that protect against one partner ‘robbing’ the account stay in place even if you’re trying to act for your partner; perhaps in paying for medical or nursing fees, for example.)
There really is no time like the present. Having a potentially difficult decision now will undoubtedly save you heartache later on.