What is a Power of Attorney?
A power of attorney is a legal document allowing a person(s) to make decisions on your behalf, or to act on your behalf if you are no longer able to or want to make your own decisions.
Types of Power of Attorney
1. Lasting Power of Attorney (LPA)
LPAs came into action in October 2007. A person must be over the age of 18 and have the mental capacity to make an LPA. A person doesn't have to live in the UK or be a British citizen to make an application.
Personal welfare LPA
This type of LPA enables your attorney(s) to make decisions about your everyday routine, moving into a care home, medical care and life-sustaining treatment. A personal welfare LPA can only be used in the case that you are not able to make your own decisions.
Decisions that a personal welfare LPA cannot make for another person:
- Where they should live if the doner is under a guardianship order.
- Refuse medication perscribed by a responsible clinician if the person has been sectioned or is on leave from hospital.
- Make decisions about life-sustaining treatment without checking whether the person has made an advance decision about this.
The law considers you to be restraining someone if you:
- Physically force them to do or stop doing something.
- Prevent them from going somewhere or doing something that they would like to do.
- Threaten to physically force them to do or stop doing something.
- Ask someone else to do any of the above things.
The only situations you should restrain a person you are attorney for:
- You believe that it is neccessary to prevent the person from causing harm to themselves.
- You don't believe that they have the mental capacity nor ability to make a decision about a particular issue.
- You believe that it is a responsible action to take as you believe that they could suffer serious harm.
Property and financial affairs LPA
A property and financial affairs LPA allows your attorney to make decisions regarding your money and your property. This includes having the power to manage your bank accounts, pay your bills, sell your home, or to collect your pension and your benefits. As soon as a property and financial affairs LPA has been registered with the Office of the Public Guardian, it can be used with immediate effect or held until it is required. A property and financial affairs attorney must keep the doner's money and property separately from their own and keep accurate accounts in all of their dealings as an attorney.
Decisions that a property and financial affairs attorney can make:
- Carrying out their trade or business.
- Writing cheques and paying bills.
- Conducting legal proceedings on their behalf.
- Selling or renting property.
- Honouring any contractual obligations.
Occasions a property and financial affairs attorney can make gifts on behalf of the doner:
- Birthdays of those related or connected to the doner.
- Marriages of those related or connected to the doner.
- To a charity the doner has supported in the past.
2. Enduring Power of Attorney (EPA)
EPAs were made before LPAs came into force and it is no longer possible to make them. However, any EPAs made before October 2007 are still valid.
An EPA soley deals with property and financial affairs rather than personal welfare.
3 step guide: how to get a Power of Attorney
A personal welfare LPA and a property and financial affairs LPA can be set up simultaneously. You may even be able to use the same solicitor for both. Often, people may consider setting POA up whilst they are reviewing or revising their will. To apply for an LPA, a person must first decide who they would like to be their attorney(s) before filling in an application.
Ways to apply:
- A POA can be applied for on the GOV.UK website online. (watch the video to the right to find out about Ann's experience using the Government Digital Service)
- You can contact the Office of the Public Guardian via post or phone to request an application pack.
Setting up a POA is a big thing and of course, you will want to make sure you answer all of the questions to your best ability. Should you wish to have your application checked, you can contact a lawyer who will be able to provide professional advice. Alternatively, you can contact either the Office of the Public Guardian or the Court of Protection to ask any questions you may have.
You may be able to receive legal aid for any personal welfare LPA issues, although you will not receive this for property and financial affairs LPAs. To find out which solicitors can provide the legal aid you can contact The Law Society or you can search for solicitors who specialise in POA on their online directory. It is important to be aware that you will only be eligible for legal aid if you pass a means test.
An LPA needs to be registered before it comes into action which can be done on the GOV.UK website. Registering a POA will cost £82 unless you get either a reduction or an exemption. Please note that if you are applying for a personal welfare LPA and a financial affairs LPA together, the cost will be £164.
This can be done by:
- The person making the application for the LPA, in other words the doner.
- The person who will have LPA, in other words the attorney.
A 6 week notice period is provided for any objections to be raised.
As soon as an LPA has been registered, which can take up to 10 weeks, the original document will be given back to the applicant for their records. A notice will be provided to the doner to advise them that the LPA has been registered.
3. Cancel (Optional!)
Even if an application has already been registered, an LPA can be cancelled at any time. However, the person must be mentally capable to decide to do so. Both your attorneys and the Office of the Public Guardian must be informed for them to remove the LPA from the register.
There are some cases where a LPA will automatically end such as if:
- The attorney has a lack of mental capacity to make calculated decisions.
- The attorney or doner passes away.
- A marriage or civil partnership between the doner and the attorney is dissolved or annulled.
- The attorney or doner becomes bankrupt.
It is also possible for the Court of Protection to cancel an LPA is they feel that the attorney is not acting in the doners best interests and gifts themselves or others excessively.
An EPA can be cancelled providing that it has not been registered and that you have the mental capacity to do so. To do so, you will need to sign a formal document called a Deed of Revocation. The only way that a registered EPA can be cancelled is if you have permission from the Court of Protection.
Why might a person set up Power of Attorney?
Someone may decide to set up a LPA if:
- They have been revising or writing their will.
- They need someone to act on their behalf temporarily if for instance they are in hospital and require help with tasks such as paying bills.
- They have been diagnosed with a long-term condition such as dementia which could cause them to lose their mental capacity to make decisions in the future.
- They are simply ageing and wish to make provisions for the future whilst they know that they still can.