A power of attorney is a legal document that appoints a chosen individual or individuals, usually a friend, family member, or a professional, to be able to make decisions on your behalf, in most cases, if you no longer have the capacity to do so. This article (a 4-minute read) explains the different types of power of attorney, why you might need one and how to create one.
What are the different types of power of attorney?
General Power of Attorney
A General Power of Attorney, sometimes known as an Ordinary Power of Attorney, is often used on a temporary basis to allow someone to make decisions on your behalf for a limited set of issues whilst you have capacity. The General Power of Attorney allows you to appoint someone to look after your financial and property affairs and can be revoked by you at any time and will automatically be revoked if you lose capacity. You may use this, for example, if you were travelling abroad for a period of time but wanted someone to make financial decisions for you.
Enduring Power of Attorney
An Enduring Power of Attorney (EPA) covers decisions about your property and financial affairs and can come into effect if you lose mental capacity. The EPAs, however, were replaced by the Lasting Power of Attorney in October 2007. If you have a signed EPA before 1st October 2007 it is still valid provided it has been executed correctly and can be registered with the Office of Public Guardian if you lose mental capacity.
Lasting Power of Attorney
There are two types of Lasting Power of Attorney (LPA), Health and Welfare, and Property Financial Affairs, and you can choose to make either or both of the documents. These types of power of attorney have replaced the EPA. They have a wider use and application, but also more safeguards associated with them.
LPA Property & Financial Affairs – This can cover decisions such as buying and selling property, managing a bank or building society account, paying the mortgage or bills, investing money, and collecting benefits or a pension. This type of Power of Attorney can be valid when you still have capacity as well as if you lose it.
LPA Health & Welfare – This can cover decisions such as where you should live, your medical care, and your daily routine, for example washing, eating and dressing. Permission can also be given to your attorney to make decisions about life-saving treatment. This Power of Attorney can only be used if you lose capacity.
Why should I make a Power of Attorney?
It is important to effectively prepare for the future to make sure your assets are protected and organised according to your wishes, making your life and your loved ones’ lives easier. It is a common misconception that a spouse/civil partner will have access to your bank accounts on your behalf, when in fact there would need to be a registered LPA in place and for them to be a named attorney.
Making a Power of Attorney means that you can choose who is able to make decisions on your behalf regarding your healthcare, and your property or financial affairs.
How do you make a Lasting Power of Attorney?
- Your solicitor will contact the Office of the Public Guardian (the government organisation responsible for registering powers of attorney) to obtain the relevant forms and information pack.
- Decide who to choose as your attorney. You can have more than one and you can also choose if you want them to able to act on their own or to make decisions together.
- Your solicitor will assist you with the documentation to appoint your chosen attorney. They will be able to offer you advise on circumstances and ensure that it is a smooth process.
- Have your LPA signed by a certificate provider, which your solicitor will be able to organise. The certificate provider is someone who can confirm that you have not been put under pressure and that you fully understand the document.
- The LPA must then be registered with the Office of the Public Guardian (OPG). There is a charge of £82 to register an LPA (therefore £164 for both) and can take up to 20 weeks.
Do I need a solicitor to make a Lasting Power of Attorney?
You do not need a solicitor to make and register an LPA, however, seeking the advice of a solicitor is invaluable when it comes to preparing for the future. If you make an LPA with the guidance of a solicitor you can be assured that the form will have been completed correctly, avoiding problems further down the line, whether not being registered at the OPG (and having to repay the submission fee) or with the bank/other bodies not accepting the document. A solicitor will have had experience in the preparation of these documents and so will be able to offer you advice on considerations to make such as whether to appoint one or more attorneys or if there are any limitations you may want to impose. Instructing a solicitor to help with an LPA can give you confidence that the documents will be valid, and your best interests will be protected in the future.
When can’t you make a Lasting Power of Attorney?
In order to make an LPA you must be over the age of 18 and have mental capacity. If you or a loved one has lost mental capacity and an LPA has not been prepared, you would need to seek advice to apply for a Deputyship Order from the Court of Protection. For more information or to get in touch with one of the team please click here.
Can I make changes to my Power of Attorney?
In general, you can’t make changes to an LPA after it’s been registered. It is possible to remove one of your attorneys, however, guidance must be sought to ensure that in doing so you don’t invalidate your LPA.
If you or an attorney changes name or address, you (or one of your attorneys if you have lost capacity) must inform the OPG. You must also let the OPG know if one of your attorneys dies.
If you have any queries or questions about an existing power of attorney or creating one, please get in touch with one of the team today.