Why do you need Power of Attorney?
No one wants to contemplate the fact that one day they may lack mental capacity, through either age or illness. As with making a Will, Powers of Attorney are about preparing for the future and ensuring everything is in hand should the worst happen.
What is a Power of Attorney?
A Power of Attorney is a legal document that allows a person (the Donor) to choose someone (the Attorney) to act on their behalf and make decisions for them with consent. For example, if you are going on holiday and need someone to progress legal matters for you in your absence, or in the event that you lack mental capacity in the future.
You can only set up a Power of Attorney while you still have the mental capacity and ability to make decisions for yourself. This is why it’s so important to think about setting this up early on.
There are several types of Power of Attorney. A solicitor can advise you on which one you might need, as well as drafting the document for you.
Lasting Powers of Attorney (LPA)
Lasting Powers of Attorney can be used to appoint Attorneys to act on your behalf in respect of your financial property and affairs, and your health and welfare.
Once registered, LPAs can be used immediately, as long as there are no restrictions and your Attorneys can act with your consent or in the event that you lose mental capacity.
In England and Wales, an LPA must be registered through the Office of the Public Guardian. Your solicitor can guide you through this process.
There are two types of Lasting Power of Attorney: Property and Finance Affairs, and Health and Welfare.
Property and Finance
A Property and Finance LPA allows your Attorney the power to make decisions around your money and property. It can include managing bank accounts, paying bills, collecting your pension and selling your home. This type of LPA can be used immediately as long as there are no restrictions in the document.
This type of LPA will be prepared as a bespoke document to your circumstances and can include instructions or preferences for your Attorneys to follow.
Health and Welfare
A Health and Welfare LPA allows your Attorney to make decisions about your healthcare, such as medical treatment, and welfare, e.g. your daily care routine. It also gives them the authority to make decisions regarding where you live in the future so that you receive the best care.
This type of LPA can only be used if you lose mental capacity. Again, it can include instructions or preferences for your Attorneys to follow, for example, if you wish to follow a vegetarian diet or listen to classical music.
Enduring Power of Attorney (EPA)
EPAs give Attorneys the authority to act on behalf of a person and make key decisions concerning their finances.
Since the introduction of LPAs in October 2007, you cannot make new EPAs. However, existing EPAs are still valid but the requirements for registration of EPAs with the OPG are different to LPAs.
General Power of Attorney (GPA)
A General Power of Attorney is a limited type of Power of Attorney. You appoint an Attorney to make decisions concerning only a specific matter and for a precise period of time. For example, if you were purchasing a property and had to travel abroad, your Attorney could deal with the signing of deeds and documents on your behalf.
GPAs should only be used in limited circumstances and where no other option is appropriate. Should you lose mental capacity, or the timescale expires, the GPA is immediately cancelled and your Attorney can no longer assist you.
What happens if I don’t have a Power of Attorney?
Ensuring you have a Power of Attorney in place provides peace of mind that someone you trust is in charge of looking after your affairs, should you lose mental capacity.
If you lose mental capacity and you don’t have a valid Power of Attorney, you may presume that your partner/spouse or next of kin can make those decisions for you. Unfortunately, that is not the case. You or your family will need to apply to the Court of Protection.
The Court of Protection can decide whether you have the mental capacity to make your own decisions. If not, they can either submit an order to make those decisions for you or appoint a deputy on your behalf to make decisions around health, property and finances on your behalf.
If you’re facing an illness, or believe your mental capacity might deteriorate, or even just in case, it’s worth thinking about who you would like to handle your affairs.
Who should I choose to be my Attorney?
The role of an Attorney is an important one, which involves a great deal of responsibility. It’s therefore important that you trust who you choose and, if you are choosing more than one Attorney, that they will work well together.
Your Attorney could be a family member, a friend, your spouse or partner. Alternatively, they could be a solicitor.
You may choose different Attorneys to manage your financial affairs to those who manage your health and welfare decisions. If you have a business, you may wish to appoint different Attorneys to manage your business decisions to your personal finances.
Whoever you choose, it’s important to let them know and give them time to think about it before they commit. You are giving this person a considerable amount of power.
Can I make my own Power of Attorney?
As with any document of such importance, it’s advised that you make a Power of Attorney through a specialist solicitor. They can ensure that the relevant forms are filled out correctly and that you’ve thought about the various options. They can also make sure it’s submitted correctly in order to be legally binding and to prevent problems further down the line.
You can contact the Office of the Public Guardian to get the relevant forms and an information pack. You can either fill these in yourself and ask a lawyer to review them, or complete them with your solicitor.
Your Power of Attorney must be signed by a certificate provider who can confirm you understand the document, what it means and that you have completed it of your own accord. This can be someone you know well or a professional, such as a doctor or solicitor.
Any Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used. It must also be registered while you still have mental capacity. Your solicitor can help you to do this.
If you need to create, update or register a Power of Attorney, our friendly, expert team can help. Our solicitors will explain your options to you and guide you through the process to ensure your peace of mind.