The ability to continue managing your own affairs and making your own decisions as you get older is not always guaranteed. If you are no longer able to make these decisions in the future, you would want someone you trust to make them on your behalf.
A Power of Attorney allows you to choose who can make those decisions if you are no longer able. Once you have created one with a solicitor, you can have peace of mind that your affairs are in safe hands.
What does Power of Attorney mean?
A Power of Attorney is a legal document which allows someone you trust to become your ‘attorney’. You, as the ‘donor,’ can give them the legal authority to act for you if you no longer have ‘mental capacity’. Having mental capacity means being able to make your own decisions, communicate those decisions and understand their consequences.
An attorney can help you with:
Pay your bills: This includes managing regular household expenses, such as utilities, rent or mortgage payments, and other financial obligations to ensure everything continues running smoothly.
Buy and sell property: Your attorney can handle transactions related to your home or other assets, ensuring that property decisions are made in your best interests.
Manage investments: They can oversee your savings, pensions, and other investments, helping to maintain or protect your financial stability.
Make medical decisions on your behalf: This could involve consenting to or refusing medical treatment, discussing care plans with healthcare professionals, or arranging ongoing care if you are unable to do so.
Access your bank accounts: Attorneys can manage your day-to-day banking, transfer funds, and ensure your accounts are used appropriately for your needs.
Deal with government bodies and services: They may contact HMRC, local authorities, or healthcare providers on your behalf to manage benefits, tax, or care arrangements.
Arrange your personal care and wellbeing: Depending on the type of Power of Attorney, they might make decisions about where you live, your daily routines, and the support you receive.
You can choose one or more people to be your attorney, however, they must be at least 18 years of age. If you do choose more than one attorney, they can either act ‘jointly’ or ‘jointly and severally’ or a combination of the two. Acting jointly means that your attorneys must make all their decisions together; whereas acting jointly and severally means they have the choice to make decisions together or separately.
What are the different types of Power of Attorney?
There are several types of Power of Attorney. You should choose one which best suits you and your own individual needs. A solicitor can help you to decide which Power of Attorney is right for you.
Ordinary Power of Attorney (OPA)
An Ordinary Power of Attorney (OPA) is useful for when you have mental capacity but need some help to make financial decisions temporarily. For example, you could be in hospital or abroad and need someone to manage your finances during this period. An OPA can help plan for this.
However, this type of Power of Attorney can become invalid if the donor later loses mental capacity. It is therefore important to note that if you have, or are likely to be diagnosed with, a mental health condition which could lead to loss of mental capacity, an OPA will likely not be the best option for you.
Lasting Power of Attorney (LPA)
A Lasting Power of Attorney (LPA) is commonly used for future planning. You can only create one if you currently have mental capacity. Unlike an Ordinary Power of Attorney, an LPA stays valid if the donor then loses mental capacity. However, an LPA must be registered with the Office of the Public Guardian before it can be used.
There are two different types of LPA: one focuses on property and financial affairs, whilst the other covers health and welfare.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA allows the attorney to manage the donor’s finances. This type of LPA involves access to tasks such as handling bank accounts, bills or buying and selling property owned by the donor.
This LPA can be used as soon as it is registered, even before the donor loses mental capacity.
Health and Welfare LPA
A Health and Welfare LPA gives the attorney the authority to make decisions about the donor’s medical treatment, daily care and living situation. This can include who the donor can have contact with and also cover end-of-life decisions.
Unlike the Health and Welfare LPA, this type of LPA can only be used once you have lost mental capacity, but it must be registered before it can be used.
Enduring Power of Attorney (EPA)
Before the law brought in LPAs on 1 October 2007, an Enduring Power of Attorney (EPA) was used instead for an attorney to make financial decisions for the donor. Unlike an LPA, it can only be registered when the donor starts to lose mental capacity.
If you had an EPA created before this date, it remains valid. You can always decide to end your EPA, but you must still have the mental capacity to do so. However, as LPAs have replaced them, you cannot now make a new EPA.
How does Power of Attorney work in practice?
When your attorney needs to act for you, they may have to present proof of their position. Attorneys can prove this by showing the LPA itself, a certified copy or even an online summary to any organisation which may ask for it.
There may be other documents an attorney would need to provide. Details such as the full name, address and date of birth of both donor and attorney may be required, alongside any account or reference numbers used by specific organisations.
Attorneys can only carry out what you have authorised them to do. As the donor, you can choose which matters you wish your attorney to deal with and, in some cases, when you would like them to start acting on your behalf. However, this requires the precise drafting by a solicitor to ensure your LPA accurately expresses your wishes.
It is important for attorneys to always act in the donor’s best interest. To decide what is right for you, your attorney must consider all possible factors and options before settling on any decision.
How do you set up a Power of Attorney?
As mentioned, it is important that you choose the right type of Power of Attorney for you and your individual needs. Similarly, you should also take the time to carefully consider who you wish to act as your attorney, or attorneys, and how you wish them to make decisions on your behalf.
You can create an LPA by downloading the forms from or applying online at GOV.UK . There are different forms for property and finance LPAs and health and welfare LPAs. These forms must be signed by the donors and attorneys in the correct order.
They also require the sign-off from a ‘certificate provider’. This can either be a person who you have known well for a minimum of 2 years or a professional, like a solicitor or doctor. The certificate provider confirms you are under no pressure to sign and that you completely understand what you are signing.
The Power of Attorney must then be registered with the Office of the Public Guardian. This is done by sending them the completed forms along with an application fee. Once registered, the Power of Attorney can come into force.
A person providing a certificate has important duties under the Mental Capacity Act 2005 (“MCA”). In TA v The Public Guardian the court reiterated that a certificate provider must form a valid opinion as to three specific matters, on a pure “black letter law approach”. The existence of a certificate alone is insufficient. In this case the Judge found that the LPAs were invalid, and should be cancelled. The appeal brought by the certifier, who was the daughter of the donor, failed as she was unable to provide evidence that the requirements of the MCA had been met.
Accordingly, it is important to get this process right. Mistakes could cause delays or rejections. Using a solicitor can help you avoid errors and prevent any needless problems from arising, making the task a lot easier to undertake.
How long does Power of Attorney take?
The length of time it takes to complete the forms depends on the complexity of the case. The more details that need to be included in the paperwork, the longer this process will take.
After registering the Power of Attorney with the Office of the Public Guardian, it can take up to 20 weeks for registration to actually happen. If they are experiencing a period of high demand, it could be even longer before your Power of Attorney is registered. Planning ahead, rather than waiting to see if the need for a Power of Attorney arises, can avoid any unnecessary time pressure during this process.
What happens if there’s no Power of Attorney in place?
If someone has already lost their mental capacity, but does not have a Power of Attorney in place, having an attorney is no longer an option. Instead, you could have a ‘deputy’ appointed to manage your affairs.
A ‘deputy’ can manage a person’s finances and/or welfare. Often it is family members, or close friends, who will apply to the Court of Protection to become a deputy if an individual without a Power of Attorney can no longer make their own decisions. If no willing or appropriate family or friends are available, a trust corporation could be appointed or the Court of Protection could choose a deputy from a panel of professionals.
This process however, is often more complex, costly and time-consuming. Having a Power of Attorney prepared in advance means you and your loved ones can steer clear of any hardships involved in appointing a deputy.
Why it’s important to get legal advice when creating a Power of Attorney
Working with a solicitor makes creating a Power of Attorney a much easier process. Professional guidance can stop costly mistakes from being made and ensure the document is valid and ready when you need it. It can also help reduce the emotional burden making a Power of Attorney can put on individuals and their families.
Goughs has the expertise to make the process as straightforward as possible. Even in particularly complex cases, with significant assets or complicated family dynamics, Goughs is on hand to support you. Having a Power of Attorney means taking care of those ‘what ifs?’ and ensuring control over your own future. It is always reassuring to know that you are in safe hands
If you are looking to create a Power of Attorney, or are still unsure what the right decision is for you, our friendly and experienced team is here to help.
