12 questions and answers about a lasting power of attorney

1. What is a lasting power of attorney?

A lasting power of attorney allows you to appoint who will take certain actions or decisions on your behalf if you are no longer able or willing to do so yourself. For example, they can pay bills, sign contracts, and sell a home for you. A

lasting power of attorney can be about more than your assets. You can also include decisions about your health and well-being in this document. For example, you can appoint a person(s) who can have access to your medical file or mention which care facility you would like to go to if you are no longer able to express those wishes yourself.

2. Can I 'outsource’ certain actions even if I'm still in perfect mental health?

Yes, a lasting power of attorney is a flexible instrument. Your lasting power of attorney also allows you to have your attorney make specific decisions for you even when you still have mental capacity. Suppose you don't mind doing your online banking, but you find that checking your tax records or choosing the right mobile and broadband plan is too much of an inconvenience for you. In that case, you can specify this in your lasting power of attorney.

3. Is a lasting power of attorney only necessary when I'm older?

No, not at all. We often associate a lasting power of attorney with age-related conditions such as dementia, but it has its uses at any age. Young people can also lose mental capacity temporarily or permanently due to an accident or serious illness. In such situations, a lasting power of attorney ensures that their interests are protected, and important decisions can be made quickly and efficiently without any complicated legal proceedings.

4. Who can I appoint to make decisions for me?

Friends, family, neighbours, a lawyer, a business partner, a colleague, etc. In principle, you can appoint anyone as an attorney. The attorney is the person who is authorised to act on your behalf. Of course, they must be willing to take on that role. You cannot force anyone to be your attorney. Here are some things to consider:

• Only choose an attorney with whom you have a strong and trusting relationship • You can appoint multiple attorneys to take different actions for you

• For some actions, it may be useful to appoint several attorneys, especially for important matters such as the sale of property and gifts. In that case, they can only make those decisions jointly.

• If you opt for several attorneys, you can add to your lasting power of attorney that they must keep each other informed or regularly report to each other.

• Beware of any conflicts of interest. For example, you cannot ask your children to make a gift to themselves in your name. You also cannot ask someone to draw up or amend a will on your behalf.

• It may be useful to appoint replacement attorneys in the event your appointed attorney dies, loses mental capacity or no longer wishes to be your attorney.

5. Do I need to pay the attorney?

No, in principle there is no fee for being an attorney. Of course, you are free to make arrangements in that regard outside of the lasting power of attorney if you want to. You may want to ensure that the attorney is reimbursed for travel and other expenses related to their role as your attorney, for example. It is best to make these arrangements in advance.

6. What actions can a lasting power of attorney include?

There is a wide range of possibilities. Actions can range from simple things such as paying bills and managing the finances of a buy-to-let property to more far-reaching decisions about buying and selling property, concluding and renewing (rental) agreements, managing investments, making and receiving gifts and accepting or rejecting an inheritance.

You can make very specific instructions in your lasting power of attorney. For example, you can state that the attorney may sell the family home, but only once you have reached the age of 85. Or you can add that gifts to the children must not exceed a certain maximum amount.

You can also add certain personal requests to your lasting power of attorney: your choice of doctor, choice of care home, who can have access to your medical file and so on. However, you cannot include any arrangements regarding euthanasia in your lasting power of attorney. A lasting power of attorney is also not a will.

7. When does a lasting power of attorney take effect?

You decide when the lasting power of attorney starts. Many people draw up a lasting power of attorney in such a way that it starts when they no longer have mental capacity or are unable to make or communicate decisions themselves. However, you can also indicate that you want your lasting power of attorney to start immediately, even if you are still able to make and communicate these decisions yourself. In that case, you can still manage your assets yourself and have your attorney take over certain specific tasks.

You can also decide how your mental incapacity is to be determined. This is generally done by two independent physicians, both of whom have to reach the same conclusion.

8. What happens if the attorney oversteps the boundaries?

It isn't always easy to detect when an attorney fails to perform their duties properly or abuses their position. You can therefore include some controls in your lasting power of attorney (see question 4 above). An interested party can also ask the Justice of the Peace to intervene if anything goes wrong with the lasting power of attorney's execution.

There is an alarm bell procedure for this. The Justice of the Peace may then decide that certain tasks can only be carried out with their authorisation or that they will replace the attorney completely.

9. Can I revoke or amend my lasting power of attorney?

Yes, you can revoke or amend your lasting power of attorney at any time for as long as you have the mental capacity to do so. This means you need to be able to make your own decisions and understand their consequences. It is important to communicate any changes or revocation to all parties involved, including the attorneys. This will avoid confusion and ensure your wishes are honoured correctly.

In addition, it is advisable to review your lasting power of attorney periodically, especially following significant changes in your life, such as a development in your health, family situation or financial circumstances. If you evaluate your lasting power of attorney regularly, it will always be up to date and reflect your exact wishes and needs. An attorney can also withdraw from the lasting power of attorney if they no longer can or want to fulfil this role.

10. Suppose I end up in a coma. A year later, I wake up from my coma and regain mental capacity.

The lasting power of attorney starts when you are found to have lost mental capacity. Once you regain mental capacity, the lasting power of attorney will cease to apply immediately, and you can make all your decisions yourself again.

11. Can I draw up a lasting power of attorney myself?

Yes, you can. However, there are some important considerations and obstacles. Although a private deed (a deed drawn up by you without a notary-public) is sufficient in certain cases, it is strongly recommended that you have your notary draw up the deed. This has to do with legal certainty and the complexity of some actions.

A deed drawn up by your notary provides more certainty about the validity and legal force of the lasting power of attorney. The notary ensures that the deed meets all legal requirements and is correctly registered. For certain actions, it is mandatory to have the lasting power of attorney drawn up by a notary: the sale of property, gifts arranged through a notary, changes to a marriage contract, etc.

A notary handles the (mandatory) registration in the Central Register of Mandates. If you have drawn up a lasting power of attorney yourself, you must file it with the Justice of the Peace.

12. What happens if I do not have a lasting power of attorney?

If you have not arranged a lasting power of attorney and you suddenly lose mental capacity, the Justice of the Peace will appoint an administrator following a legal procedure. This may be a family member, but in the event of any conflict, this may also be a lawyer or another suitable person appointed by the court.

The administrator will then make decisions for you under the supervision of the Justice of the Peace. A lasting power of attorney gives you the opportunity to decide who manages your business and under what conditions. Tip: Don't forget to draw up a will that also includes your digital estate.

What is a lasting power of attorney without assets?

Start saving or investing today