Sarah Nash, Solicitor and Head of Private Client at Astle Paterson, was recently invited to take part in Andy Twigge’s Radio Show on BBC Radio Derby to give the listeners an insight into Powers of Attorney.
To hear the interview given by Sarah to Andy Twigge please click here and scroll to 1 hour and 16 minutes (available to listen to until 10th June 2017.)
Set out below is a transcript of Andy Twigge and Sarah Nash’s conversation:
Andy Twigge: “Power of Attorney then, to probably some people they don’t even know what it is.”
Sarah Nash: “I think that’s right and it’s often confused with making a Will and appointing executors as well. This is about you losing capacity to make decisions and by making a Power of Attorney you can chose the persons you trust to make decisions for you when you can’t and that may be because you are incapacitated physically or mentally.”
Andy Twigge: “So do some people think then because mum, dad, whoever, have got a Will, like my father has got a Will, that they automatically think they can start making decisions when they can’t?”
Sarah Nash: “I think that is the case. I’ve certainly seen that in practice that people can confuse Power of Attorney with having a Will and I think the assumption is that if you have got a Will then you don’t need a Power of Attorney. A Power of Attorney is an entirely separate legal document that gives authority to attorneys – the persons you choose to make decisions for you when you can’t – when you are too poorly to do so and I think also there are some myths out there. I think people assume that if you are married your husband or wife can make decisions for you, this is decisions about your finances – your assets or about day to day matters and your medical treatment just because you are married you don’t need Power of Attorney – well that’s not the case, you do still have to give Power of Attorney to each other even if you are married.”
Andy Twigge: “So how do you go about getting Power of Attorney then and does it have to be through a Solicitor?”
Sarah Nash: “It doesn’t have to be through a Solicitor. I can think of some family situations where it may be best if it is prepared by a Solicitor so that it can be shown that the person making it has taken professional advice but it can be done without a Solicitor. The forms can be obtained from the internet. There is a Ministry of Justice website where you can find the forms and they can be completed on-line, as it were, but you can’t actually execute the forms [on-line] they still require a wet signature, as we say, so you still have to print off those forms and get them signed and witnessed and there is also a requirement for a certificate provider to sign off the person making the Power of Attorney to say that they have capacity.”
Andy Twigge: “Yes that is an issue I wanted to come to really because they have to be deemed to be capable that they know what they are signing over.”
Sarah Nash: “Yes that’s right it’s like any other legal document you have to have sufficient awareness of what you are doing – you have to understand the legal implications of making that Power of Attorney. It is such an important document. It is as important as a Will because this is giving authority to someone to make decisions for you and it is really important to choose the right persons and to set out how you want them make decisions for you – whether that’s decisions about your assets.”
Andy Twigge: “You can put conditions in then?”
Sarah Nash: “You can. You can either say that you are quite happy for them to have general authority, there are some limitations in the law in terms of what they can do for you such as they can’t change your Will or make significant gifts without the authority of the Court but you can make it on the basis there are no other limitations so the property and financial affairs one could cover dealing with your property – so selling your property if there is a need to do that in the future and if you are unable to deal with that yourself and then the more day to day things like just operating your bank account and writing cheques.”
Andy Twigge: “What about the cost of it?”
Sarah Nash: “The cost for a Solicitor to prepare it – for a Power of Attorney giving authority to deal with your property and financial matters for a single person it’s about £400.00 plus VAT for a married couple then it is likely to be about £650.00 – £700.00 plus VAT.”
Andy Twigge: “What if you haven’t got it – we are in a position where myself and my brother have not got Power of Attorney. It’s something we never discussed. We never thought we would have to and I think a lot of people are in the same position. So where does it leave you when you haven’t got Power of Attorney and I think in our case that dad would not pass that marker of being able to say yes my sons can make decisions for me.”
Sarah Nash: “Right, well, if that’s the case and the person hasn’t got sufficient capacity to make that Power of Attorney then the only alternative is for the family to apply to the Court of Protection for what is called Deputyship. So the Court grants the family member the authority that they need to be able to make those decisions but it is a long and drawn out process and it costs a lot more than making a Power of Attorney. It’s over £1,000 plus VAT initially to get the Order that you need plus there are fees payable to the Court on an annual basis because the Court remains involved in supervising what you are doing as deputy for that person.”
Sarah enjoys a strong reputation for her ability to deal with complex trusts and inheritance tax planning work and handles a variety of work including Wills, probate and Court of Protection issues.
Sarah is a full member of STEP (the Society of Trust and Estate Practitioners) and is on the Mencap List of Specialist Solicitors.
Having qualified as a Solicitor in 2000, Sarah headed up the Private Client department at a firm of Solicitors in Derby and immediately prior to joining Astle Paterson worked at a top Birmingham based law firm.
Should you wish to discuss making a Power of Attorney then please can you contact Sarah Nash at Astle Paterson in Burton upon Trent on 01283 531366 or by way of email at email@example.com.
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