Power of Attorney
What is Power of Attorney?
As you get older, there might be a number of reasons why you may need someone to make decisions for you or act on your behalf. A Power of Attorney is a legal document, which authorises one or more people to handle your financial affairs and or make decisions about your personal welfare.
It could just be temporary: for example, if you are in hospital and need help with everyday things such as making sure that bills are paid. Or you may need to make more long-term plans if, for example, you have been diagnosed with dementia.
There are two types of power of attorney: ordinary and lasting. The details of both are detailed below.
Ordinary Power of Attorney
An Ordinary Power of Attorney allows you to nominate one or more people to deal with your finances on your behalf. The document can be general and cover every aspect of your affairs, or you can specify which matters your attorney can deal with and limit the decisions they can make. For example, they could deal with assets such as your bank account but not your home.
You can end the arrangement at any time and the document is only valid for as long as you have the mental capacity to make your own decisions. You may wish to consider an Ordinary Power of Attorney if:
- you are going abroad for a period of time;
- you are going into hospital or are unable to manage your finances due to illness or disability; or
- you would like someone else to deal with a particular financial matter, for example, selling your property.
To create an Ordinary Power of Attorney, you can consult a solicitor, or you can buy the forms in some stationery shops. It is a good idea to get someone to check the forms for you. Citizens Advice Newcastle may be able to assist with this.
Lasting Power of Attorney
A Lasting Power of Attorney (LPA) is a way of planning for a time when you may lose the mental capacity to manage your own finances or make decisions about your personal welfare. It must be made while you still have mental capacity.
LPAs have replaced the existing Enduring Power of Attoney (EPA). EPAs are still valid, but you may wish to create an LPA to include your health and welfare decisions.
An LPA can work in the same way as an Ordinary Power of Attorney, but it will still be valid after you become ‘mentally incapable.’ You can also choose not to invoke the LPA until after you lose mental capacity. An LPA can be cancelled at any time, but only before you lose mental capacity.
There are two types of LPA:
Property and affairs
This gives the attorney the authority to make decisions about your financial affairs. This can be used while you still have mental capacity and your attorney can generally make decisions on things such as:
- money, tax and bills
- bank and building society accounts
- property and investments
- pensions and benefits
Health and welfare
As a health and welfare attorney, you make (or help the donor make) decisions about things like:
- daily routine, for example washing, dressing and eating
- medical care
- where the donor lives
You might need to spend the donor’s money on things that maintain or improve their quality of life. This can include:
- new clothes or hairdressing
- decorating their home or room in a care home
- paying for extra support so the donor can go out more, for example to visit friends or relatives or to go on holiday
You must ask for money from the person in charge of the donor’s funds.
There should be a specific section on refusing or consenting to treatment or a living will.
If you’re married or in a civil partnership, you may have assumed that 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. Without an LPA, they won’t have the authority.
How to set up a Lasting Power of Attorney
You can obtain the forms from the Office of the Public Guardian (OPG) or you can instruct a solicitor to prepare one for you. The completed forms must then be registered with the OPG. The LPA must be registered with the Office of the Public Guardian before it can be used. There’s a fee of £82 to register your LPA. If you’re on a low income, you may be eligible for a 50% discount, and if you’re receiving certain benefits you won’t have to pay anything at all. You must register your LPA while you still have the mental capacity and it can’t be used during the registration process which takes about 9 weeks. If you lose mental capacity but signed the LPA while you still had mental capacity, your attorney can register it for you.
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. If you lose mental capacity, these details can be sent to your solicitor or a family member.
It must be your decision to set up an LPA and you must be able to trust your attorney, as you’re giving them power to make important decisions about your life.
The LPA must be signed by a ‘certificate provider’ who confirms that you understand it and haven’t been put under any pressure to sign it. They must be someone you know well or a professional person, such as a doctor, social worker or solicitor.
Court appointed Deputies
If you need to deal with someone’s finances when they have lost mental capacity, they may not have made an Lasting Power of Attorney. In this case, you will need to apply to be a Court appointed Deputy.
The application is made through the Court of Protection and if the court appoints you as a Deputy you will be given certain responsibilities and duties. The Court of Protection is administered by the Office of the Public Guardian. Visit gov.uk for more information.
Other Useful Information
- Where to get legal advice in Newcastle
- Arranging for others to make decisions about your finances or welfare – Age UK factsheet
- Power of Attorney – Age UK factsheet
The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights, or legal advice about what action to take, please contact an adviser or solicitor..
Last updated: August 30, 2018