Guide to Power of Attorney
What is power of attorney?
A power of attorney is when someone (known as the donor) appoints someone else (known as the attorney) to act on their behalf. They give the attorney the legal authority to deal with third parties such as banks and local authorities for them. Some even give the attorney the legal power to make decisions regarding healthcare and resuscitation decisions.
There are three different types of power of attorney:
- Ordinary power of attorney
- Lasting power of attorney
- Enduring power of attorney
To make a power of attorney you must be capable of making decisions for yourself. This is called ‘mental capacity’. We can help you determine which of the powers of attorney is best suited to you and complete the process for you with minimum fuss.
Ordinary power of attorney
This power of attorney is useful if you want someone else to look-after your financial affairs for a lengthy period of time. For example, if you have a physical illness or long-term injury or if you are abroad for a long period of time.
It should not be used if you have been diagnosed with any medical condition that can lead to mental incapacity, or if you are likely to develop such a condition.
How to grant an ordinary power of attorney
You can give someone power of attorney to deal with all of your financial affairs (operating your bank accounts and buying and selling property) or just some of them (this is known as a limited power of attorney).
The details of the powers need to be drawn up by a solicitor so that they clearly state what the powers are and what authority the attorney has. Being clear is the key to avoiding any future misunderstandings or disputes. Please contact us for advice on which power of attorney suits you best and how to implement it.
Lasting power of attorney
These are used if you want someone to look after your affairs for a long period of time including your financial and personal welfare.
Because these include elements of your personal welfare (and often healthcare) they must be registered before use. They are predominantly used by people who are at risk of losing their mental capacity and thus not being able to make critical decisions for themselves.
When should an LPA be made?
You should make an LPA if you have been diagnosed with an illness that might prevent you from making decisions for yourself at some time in the future, or if you are highly likely to develop such a condition.
Medical conditions include; dementia, mental health problems, brain injury, alcohol or drug misuse, side-effects of medical treatments or other illnesses or disabilities that may render you mentally incapacitated.
It is important to note that you must make the LPA whilst you are still capable of making decisions for yourself.
Different types of Lasting Power of Attorney
There are two different types of LPA:
- A property & financial affairs LPA – this can give someone the authority to make decisions for you regarding property, financial matters, benefits and tax credits, tax affairs, debts and any legal matters for example.
- A personal welfare LPA – this can give someone the authority to make decisions about your personal life including where you live, what care you receive, what you eat and wear, what healthcare you receive and what access you have to other people.
Depending on your situation you could make either or both of these. If you wanted to make both, you don’t have to do them at the same time.
A property & financial affairs LPA
You can give someone the authority to manage all or just some of your financial and property affairs. To do this, you must make sure that it is drawn up exactly as you want it to be so that the attorney is very clear about what their responsibility covers.
This type of LPA must be registered before it can be used. Once registered it comes into effect immediately, there is no need to wait until there is a loss of mental capacity. If you only want this LPA to be in effect in the situation where you lack mental capacity, you must make this very clear when it is being written.
If you’re setting up a property and financial affairs LPA, your attorney must keep accounts and make sure their money is kept separate from your money.
You can request regular details of how much is spent and how much income you have. This offers you an extra layer of protection. If you lose mental capacity, these details can be sent to your solicitor or a family member.
A personal welfare LPA
This covers decisions about healthcare as well as personal welfare and can only be used once a person has lost mental capacity.
You can restrict or specify the types of decisions your attorney can make or you can allow them to make all decisions on your behalf. It's not possible to use a personal welfare LPA until the person who made it has lost their mental capacity. The LPA must be registered before it can be used.
How to make a lasting power of attorney
You can only make an LPA whilst you are still able to make decisions for yourself. You should select the person you want as your attorney very carefully.
You will need to complete the relevant form. There is a form for property affairs (LPA PA) and a form for personal welfare (LPA PW). If you want someone to look after both your financial affairs and personal welfare you will need to complete both forms. Whilst the forms and associated fee information are available from the government website it’s best to instruct a solicitor to help you with them.
Once the forms are completed, they, along with the appropriate fees need to be registered with the Office of Public Guardian. It takes about three weeks for the registration to be completed as the office must ensure that there are no objections to the agreements. Once the agreement is completed and registered, the Office of Public Guardian will notify you and the attorneys.
How to end a lasting power of attorney
There are a number of ways to end an LPA. These include:
- The person who made the LPA can cancel it (if they still have mental capacity).
- The attorney can say that they no longer want to be the attorney. They will need to complete the appropriate forms to do this.
- An LPA will come to an end when the donor dies.
- A property & financial affairs LPA will come to an end if either the donor or attorney becomes bankrupt.
Enduring power of attorney
What is an enduring power of attorney?
Before 1 October 2007, it was possible to make an enduring power of attorney (EPA) to manage someone's property or financial affairs. An EPA could be used before someone lost their mental capacity or after they lost their mental capacity once the EPA had been registered.
It is no longer possible to make a new EPA. However, if an EPA was made before 1 October 2007, it can still be registered and, if it is already registered, it will still be valid.
If you want to manage the affairs of someone who you think might lose their mental capacity and you don't already have an EPA, a lasting power of attorney should be used.
Even if you already have an EPA, it can only be used to look after someone's property and financial affairs, not their personal welfare. If you want power of attorney to look after someone's personal welfare, you may be able to take out a personal welfare lasting power of attorney.
Registering an enduring power of attorney
To continue using an EPA after someone has lost their mental capacity, the EPA must first be registered with the Office of the Public Guardian. The EPA must be registered by the person who will be managing someone else's affairs (the attorney). Before you register the EPA, you must notify certain people that you are going to register it.
This is done on a form which you must send to all the following people:
- The person whose affairs you are going to manage (the donor).
- Any other attorneys if there are more than one.
- At least three of the donor’s nearest relatives.
Once you have given this notice, you can apply to register the EPA on form EP2PG to the Office of the Public Guardian. There is a registration fee, although some people won't have to pay it. You can find out the latest information about fees from the Ministry of Justice website.
How to end an enduring power of attorney
There are a number of ways to end an EPA. These include:
- The donor can cancel it. They can only do this if they still have mental capacity.
- An attorney can say they no longer want to be an attorney.
- With a court order.
- The Court of protection can end an EPA if they think an attorney abused their position or if they think a donor made the EPA because of fraud or excessive pressure.
Can I change an enduring power of attorney to a lasting power of attorney?
If you have made an EPA but want to have an LPA instead, you can do this. If the EPA is not registered, you can just destroy it. You can then complete an LPA form and apply for this to be registered. Unlike an EPA, an LPA is not valid unless it has been registered. Alternatively, you could keep your EPA but make and register an LPA to deal with your personal welfare in case you lose your mental capacity. EPAs can't be used to look after someone's personal welfare.
For help with any type of power of attorney, please contact our team on 01787 277375 or use the online form.