Five Common Misconceptions About Powers of Attorney

A Power 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 Power of Attorney.

Misconception One: Attorneys, once nominated, cannot do whatever they like

This is one of the main fears people have about giving someone else control over their assets. However, it is entirely 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 power registered so it can be used at all.

The first set of restrictions come from you. When creating a power, specifically a lasting power, 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 power, 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 power given in the power and making sure they always act in the donor’s best interest.

Misconception Two: You must use the Power of Attorney the moment it is made, or You cannot make a Power 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 immediately, 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 power long before it is needed, especially a lasting power of Attorney (expressly designed for a loss of capacity).

It is entirely possible to write and sign a lasting power but keep hold of it until you need it or want to use it. This is because for a Lasting power to be used it must be registered until it is registered it is just a piece of paper with no power or purpose, and it can sit in a drawer until needed.

You could easily create and sign a Lasting power 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 Power 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 power or a general power the person making it must have capacity. There is no way around this. If you lose capacity, you cannot make a Power 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 power 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 power and then lose capacity your general power loses all its power. If you had made a lasting power when you had capacity then subsequently lose capacity your attorneys can register the Lasting Power of Attorney with the Office of the Public Guardian immediately and start helping you with your finances and care.

Misconception Four: A Power of Attorney is for Life

This simply is not true.

There are different types of Power of Attorney, Lasting and General. Lasting powers (you might have guessed from the name) are usually long term. However, a general power is not.

A general power 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 power 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 power.

Misconception Five: You can only have one attorney

The role of attorney is challenging at times, and there is a lot of responsibility.

So rather than 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 power, 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 property but have them work singly on all other matters there is a lot of flexibility, and it is entirely up to you.

Conclusion

In conclusion, there is a lot to consider when making a Power of Attorney, but it is not a decision that should be put off.

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Estate Planning Issues for Married Couples

Among the more common estate plans for married couples is what is sometimes referred to as a sweetheart estate plan. Such a plan provides for the entirety of the deceased spouse’s estate to pass to the surviving spouse; on the death of the surviving spouse, whatever remains will pass to the couple’s children or other designated heirs. Mutual reciprocal wills can be used to accomplish this intent. Of course, on the death of the surviving spouse, his or her estate will need to pass through the probate process.

A more sophisticated version of a sweetheart plan incorporates the use of a joint revocable living trust. There are many variations to an estate plan utilizing a joint trust. Basically, though, all of the couple’s assets are held in the name of the trust with both spouses serving as co-trustees. Upon the death of the first spouse, all of the assets remain in the trust with the surviving spouse continuing to serve as the trust’s sole trustee. During the surviving trust’s lifetime, she or he is free to modify or even revoke the trust agreement, change beneficiaries and otherwise dispose of trust assets as he or she sees fit. Among the advantages to using a trust, instead of reciprocal wills, is probate avoidance. However, this model may not serve well in a blended family situation where each spouse may have different natural heirs because of the surviving spouse’s ability to favor his or her own children when disposing the trust’s remaining assets.

A variation on the above is a joint trust which incorporates a survivor’s trust which is created following the death of the first spouse. The survivor’s trust is funded with the surviving spouse’s separate property and his or her share of the couple’s community property. Meanwhile the assets in the joint trust which were owned by the deceased spouse are used to pay administrative expenses, debts and liabilities of the decedent and any specific bequests made by that spouse. So, for example, in the blended family situation, the first spouse to die can provide for his or her own children, while also providing for the surviving spouse by directing that the remainder of the decedent’s share passes to the survivor’s trust.

Another alternative for a married couple’s estate plan is the use of separate trusts. In this arrangement, each spouse places his or her separate property and an equal share of the couple’s community property in a separate trust. Each spouse is treated as the owner of the assets in that spouse’s trust. By naming both spouses as co-trustees of both trusts, both spouses can maintain control over the community assets in the respective trusts. On the death of a spouse, his or her trust becomes irrevocable and is distributed in accordance with his or her instructions in the trust instrument.

A couple considering the use of a trust in their sweetheart plan should weigh the advantages and disadvantages of separate, as opposed to joint, trusts. A joint trust is created by a single trust document which serves to reduce the initial costs of establishing the estate plan. A joint trust may better reflect how the married couple views their assets, i.e., as ours as opposed to his and hers. Separate trusts, however, offer better asset protection from creditor claims, particularly in cases in which only one spouse is vulnerable to such claims. The use of separate trusts can protect the assets of the other spouse and prevent those assets from being reached by creditors of the debtor spouse. Separate trusts also serve to avoid the problems of asset tracing which can arise with the use of joint trusts. When the couple has their assets in a joint trust, the surviving spouse will need to itemize and value trust assets following the death of his or her spouse, which can be a difficult process if assets have been commingled over the years.

Married couples have many alternatives insofar as creating an estate plan that meets their mutual needs and ensures that their respective estates will pass to their intended beneficiaries. Separate trusts may offer enhanced asset protection and ease of administration following the death of the first spouse. By contrast, the psychological benefits of a joint trust may outweigh the advantages of separate trusts for a married couple who are of one accord as to how they want their estate to pass.

What You Should Do With Old Electronics

Changing tech is one of the things we do very often. It could be a smartphone, a gaming console or even a TV. When you do make the change, you may not be sure what to do with the used electronics. It can be tempting to simply toss some of the electronics in the garbage, but this should never be done for whichever reason.

Why you shouldn’t throw used electronics in the garbage

One of the things you should know is that old electronics have a lot toxin that shouldn’t be left in a landfill, such as cadmium, lead and arsenic. If left in landfills, they can very easily find their way into the ecosystem and damage animal and plant life impacting the food supply as we know it.

Tossing old tech is not a good idea since this is where you have very personal information and it needs to be kept safe. Throwing away an old computer might leak your very sensitive information to other people. You should always have all your data deleted by professionals before you get rid of your old electronics. You shouldn’t leave your personal business in wrong hands for any reason.

Recycle

There are many companies that offer recycling services and they help in the disposal of the old tech in the most responsible manner. These are companies that are willing to buy old tech so as to help you ditch them in an easy way, you may also check with your local government so as to find out if they have any recycling options that are available. There are also some big tech manufacturers that recycle and you may get a gift card after this. Before choosing this option, be sure to delete all your information within the electronic.

New use

You may think a used electronic is obsolete because of the new one you have acquired, but this is not the case in many cases. You can look for some inspiration on what to do with old electronics and you may actually be surprised. There are some that can be used as a control panel for different things within the household.

Sell your used electronics

You may no longer need your used electronics, but they may be worth so much more to someone else. Someone may find them very useful and they can use them to upgrade from something less superior. The most important thing to do is to ensure that you wipe the electronics clean before you give them to another owner. There are also different companies that buy used electronics even if they have a defect. They have different ways of dealing with such items.

Donate

The other option you have is to donate the used electronic. This is a good option if you don’t want to recycle, sell or reuse. You may give them to a charity that could make use of them, especially if it is still working well. You will discover that there are so many people that could make use of something that is worth very little to you. If it has a defect, you can simply get it repaired before making the donation.