What is Power of Attorney?

Power of Attorney

Power of attorney is a legal document that lets you appoint someone to help you make decisions or make them on your behalf. It is normally used in situations where you are unable to decide due to an accident or illness, or when you lack the mental capacity to decide what is right.

Granting a lasting power of attorney (LPA) is not a decision to be taken lightly as it hands over the controls of your life to someone else. You have to be over 18 and have the mental ability to make important decisions before granting power.

You can appoint more than one attorney and allow them to make decisions either together or on their own.

You may have heard about Enduring power of attorney, but this was replaced by Lasting power of attorney in 2007. These older agreements are still valid today and need to be registered with the office of the public guardian, once the person has loss of capacity.

Lasting power of attorney

This allows you to delegate decisions about your personal welfare about your daily routine like washing, medical care, moving into a care home and receiving life-saving medical treatment.

A second type of LPA covers property and financial affairs giving your attorney the power to make decisions about your money and property, including managing your bank or building society accounts, paying bills, collecting your pension or benefits and, if necessary, selling your home.

Who should you appoint?

Anyone can be appointed as an attorney, although it is usually a close family member or a professional such as an account or solicitor. Remember that using a professional will likely carry charges for their service. It is important to note that attorneys do not have absolute power over your affairs. They must always assume you have the mental capacity to make your own decisions but offer help in making them. They are bound to act in your best interests. The LPA cannot be used until it has been registered by The Office of the Public Guardian but you can appoint people to be notified once an attorney tries to register the document.

Choosing one sibling over another often causes family friction. Many people chose their oldest child, but there are other considerations to take into account, such as how close they live or whether their profession makes them better suited to manage your finances.

Of course, you may not want to grant power of attorney to anyone, at least not right now. In this case, there are still less drastic measures you can take. For example, if you need to give someone access to your bank account temporarily, you can write to your bank asking for a third-party mandate.

There may be occasions when its too late to grant power of attorney because you are already lost the mental capacity to make that decision. In these cases, a close relative or carer has to apply to the Court of Protection who will appoint a deputy to make choices on your half.

The Court is responsible for

  • deciding whether someone has the mental capacity to make a particular decision for themselves
  • appointing deputies to make ongoing decisions for people who lack mental capacity
  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
  • considering applications to make statutory wills or gifts
  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

Like many matters in later life, it is always wise to plan ahead. Even if you organise power of attorney, you don’t have to activate it straight away. You can have it ready, just in case. And remember you can only set it up whilst you are of sound mind.

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