If you’re planning ahead and setting up a Power of Attorney to ease the stress and burden on you and your family, you’re likely to want to do your homework.
So, we thought we’d share with you all of the FAQs we’re often asked and Power of Attorney facts.
Different types of Power of Attorney
Ordinary Power of Attorney (OPA) – This arrangement is suitable if you have mental capacity, but need temporary cover, i.e. if you are on holiday and need something signed, or during a hospital stay which restricts you.
Lasting Power of Attorney (LPA) – This allows you to give someone you trust the legal authority to make decisions about your financial affairs, or your health and care, should you lack the mental capacity to do so at some point in the future. This person is referred to you as your Attorney. It is recommended that this is done when you write your Will, but can be arranged at any time.
Enduring Power of Attorney (EPA) – EPAs were replaced by LPAs in October 2007. If you arranged an EPA before this time, it should still be valid.
What is mental capacity?
Mental capacity is the ability to understand the decisions you are asked to make. Lack of mental capacity can be from a permanent cause, such as dementia, or one that may be temporary, such as brain damage following an accident or illness, or being in a coma.
It is important to bear in mind that lack of mental capacity may be different for different types of decision. For instance, someone who might struggle to cope with financial decisions such as investments could be perfectly capable of making decisions about living arrangements or diet. Conditions such as dementia or learning disabilities do not automatically mean a lack of mental capacity. This means, for instance, that you may still be able to set up an LPA even when you are in the earlier stages of dementia.
Similarly, many types of mental illness can leave a person capable of making informed decisions. A doctor who judges your level of mental capacity will take into account whether you are able to express a preference, even if it takes a long time, or if you have to use communication other than speech or writing.
Who can be an Attorney?
You are entitled to appoint any adult as an Attorney, as long as they have mental capacity and are not bankrupt. They must agree to the arrangement before the LPA can be registered, and they must be a suitable candidate. For example, someone who lives abroad is unlikely to be a practical choice of Attorney.
The most common choices are partners, family members and close friends, but you may prefer to choose a professional, such as a solicitor.
Age is a factor you may wish to consider when thinking about your Attorneys. Although they could be called on at any time, the most likely scenario will be that you will need them when you are older. If you appoint someone of your own generation, they may not be able to act on your behalf by then.
What type of decisions can an Attorney make?
You can appoint someone you trust to make decisions about your assets and finances, and also your health and welfare.
If you are an attorney, the types of decisions you can make depend on which LPA you’re appointed as. There are two types:
1. Property and Financial Affairs Attorney
This involves making decisions about assets and finances, which might include:
- mortgage and bills
- buying and selling property
- wages, pensions or benefits
- property repairs
2. Health and Welfare Attorney
This involves making decisions about health and care, such as:
- medical care
- day to day schedule (who they see, what they do)
- life-sustaining treatment
A big difference between the two types of LPAs is that you may choose to use the Property and Financial Affairs LPA while you still have the capacity, but a Health and Welfare LPA can only be used once they have lost that capacity.
You can appoint two different Attorneys or the same person for both. You can even appoint more than one Attorney for each field, although one will usually be designated “lead”. You can also appoint Replacement Attorneys who can step in and act when one of the original Attorneys cannot.
What are my legal responsibilities under Lasting Power of Attorney?
As an Attorney, you have a duty to:
- Act in the person’s best interests
- Only make decisions that are in accordance with the terms of the LPA.
- Help the person to make their own decisions where possible, as opposed to taking control.
- Act based on the principles of the Mental Capacity Act 2005.
- Keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.
More detailed information about Lasting Power of Attorney responsibilities is available in the Mental Capacity Act Code of Practice.
When do I stop acting as an Attorney?
If the donor dies: you should send the LPA together with an certified copies and a copy of the death certificate to the Office of the Public Guardian. Unless you are the executor of their will, you have no further power to act for the donor.
If you no longer wish to be an Attorney: you can ‘disclaim’ the role. You should give formal notice to the donor if the LPA has not yet been registered. If it has then you must contact the Office of the Public Guardian.
You must stop acting as an Attorney if:
- You are removed from their LPA
- you lose mental capacity and can’t make decisions any more
- you are a Property and Financial Affairs Attorney and you become bankrupt or subject to a debt relief order
- you are married to or in a civil partnership with the person and you get a divorce or an annulment (unless the LPA says you can keep acting as an Attorney)
- you are a joint Attorney and another Attorney stops acting, unless the LPA says you can carry on making decisions in this circumstance
A family member signed an Enduring Power of Attorney before October 2007 and the law has since changed – what do I do?
Since October 2007 no more Enduring Powers of Attorney (EPA) can be made but any that pre-date the change in the law are still perfectly valid. Once the donor has begun to lose mental capacity then the EPA must be registered with the Office of the Public Guardian. Please contact us and we can help you to complete the necessary paperwork.
I would like to set up a Power of Attorney to help me with my finances. What do I need to do first?
You would benefit from a Lasting Power of Attorney for Property and Financial Affairs, in which you can name various people who you want to help with your finances. The first thing to do is to book an appointment with us to discuss your needs. Please also consider who you would want to name to be your Attorneys – if you are unsure, we can help you decide.
I would like to set up a Power of Attorney to help me with my health and wellbeing. What do I need to do?
You would benefit from a Lasting Power of Attorney for Health and Welfare. Please contact us to make an appointment so we can discuss your needs.
How we can help
It might seem as though there are lots of decisions to make when you’re planning for the future. But our solicitors in Bedfordshire are here to help.
At Osborne Morris & Morgan we can help with all stages of putting a Lasting Power of Attorney in place. If an LPA has not been put been in place, we can also help with the application for Deputyship and the requirements.
For a confidential, obligation-free discussion contact a member of our friendly and expert Lasting Power of Attorney Team on 01525 378177, or email us on firstname.lastname@example.org.