Powers of Attorney
Ordinary Power of Attorney:
This is generally used as a temporary instruction whilst you have mental capacity. It’s generally used for short term planning, if you feel that it’s appropriate when you’re on a trip abroad for example.
Lasting Power of Attorney:
A LPA is a legal document which allows you (the Donor) to appoint one or more people (attorneys) to have legal authority to act on your behalf should you lose the ability to make decisions for yourself.
You should choose someone that you (ideally know) and trust, to make decisions on your behalf about things such as your property and financial affairs and/or health and welfare.
The POA (Power of attorney) can be drawn up at any time while you have mental capacity. Once registered with the Office of the Public Guardian, the property and affairs LPA can be used by the attorneys to make decisions when you lack mental capacity ( and also whilst you have mental capacity) unless restricted.
A Lasting Power of Attorney is (ideally) recommended for everyone, but it’s usually considered an imperative when mental incapacity is a potential outcome (for elderly or ill relatives)
It’s certainly better to have one and not require it, than the challenging and frustrating alternative.
No LPOA when you need one? – Here’s what happens
A deputy is not a sheriff’s assistant in the Wild West. In this instance they are a person/or persons appointed by the Court of Protection to manage the property/finances and/or to make decisions regarding the health and welfare issues for the Donor (who lacks the mental capacity to manage these things for themselves). A Deputy can only act under a court order from the Court of Protection. This order sets out the Deputy’s powers and entitles the Deputy to act on behalf of the person lacking capacity
A Deputy will not be required if the person lacking capacity has previously made a Enduring or Lasting Power of Attorney
So who does what In a LPOA?
- Attorney – The person appointed to do things on someone’s behalf.
- Certificate Provider – The person who signs a Lasting Power of Attorney to confirm that the person appointing the Attorney is of sound mind and isn’t under undue influence or pressure to make the decision.
- Court of Protection – The specialist court which considers all matters relating to the creation of Powers of Attorney and their use.
- Deputy – A person who is appointed by the Court of Protection to make decisions on behalf of someone else who lacks the mental capacity to manage their affairs themselves.
- Donor – The person who’s making the Power of Attorney.
- Mental Capacity – The ability to understand the decision you’re making.
- Office of the Public Guardian – The administrative arm of the Court of Protection.
Property and Financial Affairs LPA
This LPA gives your attorneys authority to make decisions on your behalf about your Property and Financial Affairs. For example, this LPA will give your attorneys the power to:
- Sell your property
- Open, close or operate your bank, building society and other investment accounts
- Access your financial information
- Claim, receive and use all benefits, pensions, allowances and rebates
- Receive any income and pay your bills
- Deal with your tax affairs
- Insure, maintain and repair your property
- Make limited gifts to your family and friends on birthdays, weddings and other appropriate occasions and continue regular donations to charity
- Pay for private medical care and residential care or nursing home fees
- Apply for any entitlement to funding for NHS care or nursing home fees
Health and Welfare LPA
This type of LPA allows you to choose people to act on your behalf and make decisions about your health and personal welfare, when you are unable to make decisions for yourself
Your attorneys may make decisions about your medical treatment, but the attorneys cannot make decisions about life-sustaining treatment unless you specifically state this in your Health and Welfare LPA. Decisions your attorneys can make on your behalf might include:
- Medical matters (for example, giving or refusing consent to medical examination and treatment)
- Arrangements needed for you to be given medical, dental or optical treatment
- Where you should live and who you should live with, including perhaps moving into sheltered housing or a care home
- Your day-to-day care, including what to eat and what to wear
- The assessment and provision of any community care service
- Accessing personal information about you such as medical records or legal records
- Whether you should take part in any social, leisure or educational activities including taking you on holiday.
Remember if you lose capacity and do not have an Enduring or Lasting Power of Attorney in place you cannot choose whom you would like to handle your financial affairs. Deputyship of all of your financial affairs could be awarded by the court to a Solicitor or Local Authority instead of your preferred family member or friend.
It’s best to register as soon as possible. This is because during the registration process the document will be checked for errors. If you catch them while you can still manage your affairs you can correct them – if not, your power of attorney might be invalid.
Setting up a power of attorney
You can do it yourself or enlist the help of a professional. The costs will reflect the time taken to prepare and complete the document(s). It’s best to ask how much will be charged before you proceed, as the amount that you pay will vary.
Send the completed forms back to the agency (along with the relevant fee). They’ll check that the forms have been completed accurately and that any special rules you’ve asked for – for example, restrictions on what the attorney is allowed to do – are practical. If there are errors or problems they’ll return the form to you.
When you fill in the form you’ll usually need to write down some friends or family members who should be told about your application. This is to give other people a chance to object –
they’ve got six weeks to do it in. If everything goes smoothly the whole process takes several weeks. You will have to register it before you can use it
Registration and costs
It’s best to register as soon as possible. This is because during the registration process the document will be checked for errors.
If you catch them while you can still manage your affairs you can correct them – if not, your power of attorney might be invalid.
England and Wales: £82 for each lasting power of attorney.
The fee may change so it’s a good idea to check when you register.
Cancelling a lasting power of attorney
While you still have mental capacity, you can cancel a lasting power of attorney at any time. The best way to do this is to draw up a written deed of revocation.
Get instructions for cancelling a lasting power of attorney on the GOV.UK website.
If you’ve officially registered your power of attorney you will need to tell the Office of the Public Guardian about the revocation and it will remove the entry from the register.
After you have lost capacity, the lasting power of attorney can only be cancelled with the agreement of the Court of Protection.
If you already have an enduring power of attorney – England and Wales
In England and Wales, if you set up a power of attorney before 1 October 2007 it will be called an enduring power of attorney. You can’t set up this type any more, but an existing one is still valid.
While you still have mental capacity, an enduring power of attorney can be used without being registered – but it must be registered as soon as you start to lose capacity
An EPA only covers the property and financial affairs, not health and welfare and can only be used when mental capacity has deteriorated.