26 July 2020
What is a Power of Attorney and why might you want to make one?
Life can be unpredictable, but there are measures you can take to help ensure your interests are taken care of should you become unable to do so yourself. One such measure might be a Power of Attorney.
Simply put - a Power of Attorney is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘Attorneys’) to help you make decisions, or to make decisions on your behalf.
A Power of Attorney could for example allow your Attorney to make decisions around matters such as where you live, your finances, or the medical treatment you receive. Each Power of Attorney is individual and can be tailored to suit your needs. That’s why the help of an experienced solicitor can be so crucial.
There are a number of reasons why you might wish to make a Power of Attorney, ranging from short-term circumstances such as a hospital stay, to preparing for a more permanent situation. Certain conditions such as Dementia may lead to someone wishing to make a Power of Attorney, although having Dementia doesn’t necessarily mean someone is unable to make any decisions for themselves.
Don't assume that If you’re married or in a civil partnership, your spouse would automatically be able to deal with your bank account and pensions, and make decisions about your healthcare if you lose the ability to do so. This is not the case, unless a Power of Attorney is in place.
It is possible to appoint more than one Attorney, and they may act “jointly” or “jointly and severally”, whereby they have to make some decisions together and some individually. An example of this might be that you wish for them to agree and make joint decisions over your finances but allow one Attorney to make a decision without consulting the other regarding medical matters in an emergency situation.
When you speak to a solicitor for an initial consultation, they’ll ask questions around whether or not you have a will, who you might wish to appoint as Attorney (s), what assets or income you have, any special wishes you have around financial, property or medical matters, and whether you have any particular medical condition.
As the name suggests, a ‘Lasting’ Power of Attorney (LPA) differs from an ordinary power of attorney in that it ‘lasts’, even after you become unable to manage your affairs. In practice, this could occur due to illness, disability, an accident, or any number of other circumstances.
However, for a Lasting Power of Attorney to be valid, when making the document, you must fully understand the implications of the arrangement at the time of making it. This means that you must not have any mental impairment which may affect your decision-making ability, such as Dementia or Alzheimer’s.
For this reason, it is of vital importance that an LPA is made with plenty of notice before it could be enacted.
A “Certificate Provider” – a qualified Solicitor, a Doctor, or someone that you have known for at least two years is obligated to verify that you are of sound mind, you are not being pressurised into making the document and that you are aware of the implications of making an LPA.
Any appointed Attorney must be at least 18 years old and must not be bankrupt if appointed to make decisions about your property and money.
Your Attorney cannot start making decisions on your behalf until the LPA has been registered by the Office of the Public Guardian, who will make sure your Attorney is aware of his or her duty to act in your best interests.
The Office of the Public Guardian will charge a fee for registering the LPA (£82.00 per document).
There are two types of Lasting Powers of Attorney; one which covers your ‘health and welfare’ and the other covering your ‘property and financial affairs’.
Health and Welfare Lasting Power of Attorney
A health and welfare LPA can be made to give your Attorney the power to make personal welfare and medical treatment decisions on your behalf if at some point in the future you are unable to make those decisions yourself.
Decisions may include matters such as:
- Your daily care routine, including what you wear, hygiene etc.
- What and when you eat.
- Who you should have contact with, and at what regularity.
- What medical care you receive.
- If and when you should move into a care home.
You can also give special permission for your Attorney to make decisions about life-saving treatment.
There are some specific instances where your Attorney will not be able to influence your care. For example, they can’t refuse any medication prescribed by a responsible clinician if you have been sectioned under the Mental Health Act or are on leave from hospital. Nor will they be able to make decisions about where you should live if you are under a Guardianship Order, or make a decision about life-sustaining treatment without checking whether the you have made an advance decision about this.
Property and Financial Affairs Lasting Power of Attorney
A property and financial affairs LPA can allow your Attorney the right to make financial decisions on your behalf. Such decisions may include:
- selling your home
- collecting benefits or pensions
- investing money
- paying bills
- managing a bank account
- making gifts on your behalf
- arranging repairs to a property.
However, whilst ever you are of sound mind and can make your own decisions, permission must be given to your Attorney to act on your behalf before they can do so.
If mental capacity is lost your Attorney must make financial decisions in your best interest always and should make the decisions that you would have made as If mental capacity had not been lost.
Your Attorney must keep accounts and make sure their money is kept separate from yours. You can ask for regular details of how much is spent and how much money you have. These details can be sent to your Solicitor or a family member if you lose mental capacity. This offers an extra layer of protection.
Cancelling or Ending a Lasting Power of Attorney
As long as you still have the mental capacity to do so, you can cancel your LPA at any time, even if the application has been registered.
An Attorney’s duty automatically ends if:
- Your Attorney or you die
- A marriage or civil partnership between the Donor and the Attorney is dissolved or annulled
- Your Attorney or you become bankrupt
- Your Attorney loses mental capacity to make decisions.
The Court of Protection can cancel an LPA if you Attorney isn't acting in your best interests and is making excessive "gifts" to themselves or others.
When no Lasting Power of Attorney is in place
If you become mentally incapable of making important decisions via such illnesses as Dementia or Alzheimer’s and you haven't made an LPA the matter can be referred to the Court of Protection as a last resort.
The Court may appoint someone know as a “Deputy” to make the important decisions for you.
The application process for the appointment of a Deputy is extremely costly and time consuming compared to that of creating a Lasting Power of Attorney. It often costs in excess of £1000 and usually takes 9- 12 months to be processed through the Court.
If a person without an LPA in place is entitled to receive a retirement pension or other state benefits, the Department for Work and Pensions can choose an 'appointee' to receive those benefits on that person's behalf. The appointee can be a relative, friend or someone from the caring professions (such as the local authority social services department).
