Power of Attorney
Power of Attorney
What is a Power of Attorney?
Power of Attorney is a legal document where one person (the donor) gives another person the right to make decisions on their behalf. If you want someone to act on your behalf in financial or medical decisions, you’ll need to give them Power of Attorney over your affairs. You can only set up a Power of Attorney while you still have the ability to weigh up information and make decisions for yourself, known as ‘mental capacity’ – so it’s worth putting one in place early on.
Why you need a Power of Attorney
There are a number of reasons why you might need someone to make decisions for you or act on your behalf:
- This could just be a temporary situation: for example, if you’re in hospital and need help with everyday tasks such as paying bills.
- You may need to make longer-term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.
Frequently asked questions
Below you will find the answers to any questions you may have regarding our products and services. If you need more details on anything or want to talk to a friendly member of our team, contact us directly.
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.
Some people will be able to make decisions about some things but not others. For example, they may be able to decide what to buy for dinner but be unable to understand and arrange their home insurance. Alternatively, their ability to make decisions may change from day to day.
Needing more time to understand or communicate doesn’t mean you lack mental capacity. For example, having dementia doesn’t necessarily mean that someone is unable to make any decisions for themselves. Where someone is having difficulty communicating a decision, an attempt should always be made to overcome those difficulties and help the person decide for themselves.
An LPA for financial decisions can be used while you still have mental capacity, or you can state that you only want it to come into force if you lose capacity.
An LPA for financial decisions can cover things such as:
- buying and selling property
- paying the mortgage
- investing money
- paying bills
- arranging repairs to property.
You can restrict the types of decisions your attorney can make or let them make all decisions on your behalf.
If you’re setting up an LPA for financial decisions, 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.
You don’t have to use a solicitor to create an LPA. The application forms from the Office of the Public Guardian (OPG) contain guidance to help you fill them out. Alternatively, you can fill them in online and phone the OPG helpline if you have any issues or concerns.
If you want to use a solicitor, you’ll need to pay them to complete the form for you. Fees for creating an LPA vary, so you might want to contact a few to compare their fees and the service they offer.
Some people worry about whether they can be sure their attorney will act in their best interests but there are certain principles they must follow.
It can be a good idea to appoint more than one attorney – known as joint attorneys – but you must decide if they are to make decisions:
- jointly – meaning they work together on all matters
- jointly and severally – where they may act together or separately, as they choose.
You may want to specify that attorneys must act jointly for specific decisions, such as selling a house, but they can act jointly and severally for all other decisions.
You might also consider appointing replacement attorneys; in case something happens to one of your attorneys and they are unable to act on your behalf anymore
Your attorney must follow certain principles to ensure you still make your own decisions as much as possible, and that they make the right decisions on your behalf if you can’t.
Your attorney should:
- Assume that you have mental capacity. The attorney must first assume that you’re able to make the decision yourself before they make a decision for you.
- Help you make a decision. You must be given as much practical help as possible to make your own decision before anyone decides you’re unable to. For example, if you’re better able to understand things at a particular time of day, you should be helped to make a decision then. Or you may be better able to understand or communicate using pictures or sign language.
- Allow you to make ‘unwise decisions’. You shouldn’t be treated as unable to make a decision just because you make decisions that others might not agree with.
- Choose the least restrictive decision. Anyone making a decision for you should consider all the alternatives and choose the one that is the least restrictive of your rights and freedoms.
- Act in your best interests. Any decisions made or action taken on your behalf must be made in your best interests.
An ordinary power of attorney allows one or more person, known as your attorney, to make financial decisions on your behalf. It’s only valid while you still have the mental capacity to make your own decisions. You may want to set one up if, for example:
- you need someone to act for you for a temporary period, such an when you’re on holiday or in hospital
- you’re finding it harder to get out and about to the bank or post office, or you want someone to be able to access your account for you
- you want someone to act for you while you’re able to supervise their actions.
You can limit the power you give your attorney so that they can only deal with certain assets, for example, your bank account but not your home.
An ordinary power of attorney is only valid while you have the mental capacity to make your own decisions. If you want someone to be able to act on your behalf if there comes a time when you don’t have the mental capacity to make your own decisions, you should consider setting up a lasting power of attorney.
If you are a friend or relative of the donor and have concerns over the way an attorney or deputy is acting, or are worried that they are not making decisions in the best interests of the donor, you should raise this with the Office of the Public Guardian.
The Office of the Public Guardian is responsible for registering and monitoring attorneys and deputies and can investigate allegations of mistreatment or fraud. It can report concerns, to another agency, such as the police or social services, if appropriate.
There are different types of power of attorney and you can set up more than one.
Ordinary power of attorney
This covers decisions about your financial affairs and is valid while you have mental capacity. It is suitable if you need cover for a temporary period (hospital stay or holiday) or if you find it hard to get out, or you want someone to act for you.
Lasting power of attorney (LPA)
An LPA covers decisions about your financial affairs, or your health and care. It comes into effect if you lose mental capacity, or if you no longer want to make decisions for yourself. You would set up an LPA if you want to make sure you’re covered in the future.
Enduring power of attorney (EPA)
EPAs were replaced by LPAs in October 2007. However, if you made and signed an EPA before 1 October 2007, it should still be valid. An EPA covers decisions about your property and financial affairs, and it comes into effect if you lose mental capacity, or if you want someone to act on your behalf.
A lasting power of attorney (LPA) is a way of giving someone you trust, your attorney, the legal authority to make decisions on your behalf if you lose the mental capacity to do so in the future, or if you no longer want to make decisions for yourself.
There are two types of LPA:
- LPA for financial decisions
- LPA for health and care decisions.
This covers health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:
- where you should live
- your medical care
- what you should eat
- who you should have contact with
- what kind of social activities you should take part in.
You can also give special permission for your attorney to make decisions about life-saving treatment.
If you’re unhappy with the decisions that are being taken, there are a number of ways you can make a complaint.
- If you think you’re in immediate danger, contact your local police force or call 999 in an emergency
- Raise your concerns with the Office of the Public Guardian, which has responsibility for monitoring attorneys and deputies and can investigate allegations of mistreatment or fraud. It can report concerns to another agency, such as the police or social services, if appropriate.
- To speak to someone confidentially about your concerns of financial misuse or abuse, call the Action on Elder Abuse helpline on 080 8808 8141.
The role of an attorney involves a great deal of power and responsibility so it’s important you trust the person or people you choose.
It’s a good idea to give the person you ask time to think about the role, to make sure they feel comfortable doing it.
Your attorney could be a family member, a friend, your spouse, partner or civil partner. Alternatively, they could be a professional, such as a solicitor.
Your attorney can claim back any expenses they incur as part of the role – such as postage, travel costs or photocopying. They can claim these from your money, keeping an account of any expenses and relevant receipts.
However, they can’t claim for time spent carrying out their duties unless they are a professional attorney, such as a solicitor, who will charge fees.
When making any decision, your attorney must:
- do everything possible to encourage you to participate
- consider your past and present feelings, especially any expression of your wishes you made
- consider any of your beliefs and values that could influence the decision
- talk to other people, such as your family, carers or friends, who know about your feelings, beliefs and values
- always remember your right to privacy and that it might not be appropriate to share information about you with everyone
- know about any exceptions, such as if you have made an advance decision to refuse medical treatment.
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