30-09-2010

Do you own or run a business? Got a contingency plan?

You can also give a much wider power to someone like your business partner. This would mean they can step into your shoes whenever they are needed to sign papers or make decisions at any point in the future, say if you were ill. In fact, when 2 or 3 people are in business together this would be a sensible step to take, to ensure business continuity.

Appointing an attorney can be important in your personal life as well, particularly if you have lots of assets/investments. What if something happened to you tomorrow and you could no longer write a cheque, or sort out your direct debits, even get cash out of the bank... what would you do? People can lose the ability to do all these things in all sorts of ways – a skiing accident, a car crash, a stroke, dementia or even a routine stay in hospital!

By creating a Lasting Power of Attorney (LPA) you can choose someone you trust to take charge of your finances if you need them to. You can choose more than one person if you like, or one person with a “back up”, just in case. The LPA must be registered with the Office of the Public Guardian before it can be used. But once that has been done, it can take effect whenever and as often as you need it. It can last for the rest of your life or whatever other timescale you choose.

Obviously, by giving someone power to look after your finances like this there are risks. Your attorney would have complete control and could sell your house and all your assets. There are 2 main ways of safeguarding against this. Firstly, when the LPA is registered you can choose up to 5 people who must be told. These people can act as “whistleblowers” and speak up if they suspect anything is amiss. Secondly, you can place restrictions on your LPA to prevent your attorney from doing certain things. We would however, always urge caution on restrictions though as your circumstances can change and what might not be appropriate now, may be necessary in the future. For example, you might not want your attorney to be able to sell your house right now. But what if 10 years from now you had a stroke and needed residential care? It might be essential that they have power to sell your house in those circumstances.

To be able to set up a LPA you must have the necessary understanding of what is involved. Sadly, many people leave it too late and come to us – or, rather, their families do - to set one up when they have advanced memory problems or dementia. If you don’t have the necessary ‘mental capacity’ then you can’t create a LPA. How many times do we hear “Oh, if only we had come to you sooner…”

So don’t leave it too late. We like to think of a LPA like an insurance policy. We hope you will never need to use it, but you will have the peace of mind of knowing it is there just in case.

Richard Barlow is a senior solicitor in our private client team and would be delighted to discuss the appointment of an attorney with you. Please contact Richard on 01246 560560 or e-mail rpb@bannerjones.co.uk.