Frequently Asked Questions - Power of Attorney
A Power of Attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you’re no longer able to or don’t want to make your own decisions.
By creating a Power of Attorney, you can ensure that if you ever lose the ability to manage your own affairs, they will be looked after by someone you trust.
There are two types of Power of Attorney – Ordinary Power of Attorney and Lasting Power of Attorney (LPA).
This depends on your reasons for setting up a Power of Attorney. LPAs only apply when you no longer have mental capacity. It’s possible to choose someone not only to manage your finances and property, but also to make health and welfare decisions on your behalf. OPAs are valid only while you still have mental capacity to make decisions about your finances.
An LPA is a Power of Attorney which survives donor death and loss of capacity. It 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 should set up an LPA if you want to make sure you're covered in the future.
The two types of LPA are Property and Financial Affairs – which deals with bills, finances and property - and Health and Welfare – which deals with healthcare, consent to medical treatment and accommodation.
Everyone needs a Lasting Power of Attorney. You can arrange one at any age and well before you need it, as you need to have the capacity to make the decision.
A Lasting Power of Attorney can only take effect once it has been registered with the Office of the Public Guardian, which we can arrange for you. A Health and Welfare LPA can’t be used until the person who made it has lost capacity, while a Property and Financial Affairs LPA comes into effect as soon as it is registered, unless you request otherwise.
You can end your Lasting Power of Attorney yourself – as long as you have mental capacity to make that decision.
If you lose capacity to make your own decisions and you don’t have a valid Lasting Power of Attorney, you will need someone to apply to the Court of Protection as a Deputy on your behalf. Having a Lasting Power of Attorney prevents this lengthy process.
An OPA 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), if you find it hard to get around, or you want someone to act for you.
An EPA was a Power of Attorney made before 1st October 2007 to manage a person’s property or financial affairs. It was the old legislation preceding the LPA. It could be used before or after the loss of mental capacity, following registration. A new EPA can’t be made, but if one was made before 1st October 2007, it can still be registered. If it is already registered, it is still valid.
When health professionals look at your capacity to make a decision, they will check to see if you can:
- Understand the information related to the decision
- Remember the information for long enough to make a decision
- Weigh up or use the information to reach a decision
- Communicate the decision in any way at all, such as talking, using sign language or hand signals
The test can be applied to someone who lacks mental capacity, for example, because of an illness or the effects of medication.
Deputyship is when someone applies to become a person’s ‘Deputy’, after they lose mental capacity to make decisions. They apply to the Court of Protection to be authorised to do this and have to send an annual report, explaining the decisions they have made, to the Office of the Public Guardian. The process is prevented by having a Power of Attorney.
A Deputy is usually a family member or a friend. The Court can also appoint a professional Deputy, such as a solicitor.
Two or more Deputies can be appointed and can act jointly, or jointly and severally.
You can choose anyone you want to be your attorney, as long as they are over 18. For a Property and Affairs LPA, however, the person you choose cannot be bankrupt. Most people will choose a relative or close friend to be their attorney, especially for a Health and Welfare LPA. You can also ask a professional, such as an Accountant or Solicitor.
There is no limit to the number of people you can name as an attorney when making a Lasting Power of Attorney. You can also name replacement attorneys who can step in if one of the original attorneys becomes unable to act. Multiple attorneys can make decisions together (‘jointly’), act separately (‘severally’), or a combination of both.
The attorney’s responsibilities will be specified in the LPA. Legal responsibilities include:
- Acting in the donor's best interests and taking reasonable care when making decisions on their behalf
- Acting in accordance with the terms of the LPA
- Helping the donor make their own decisions where possible, rather than simply taking control
Your LPA will end if your attorney dies and you have no replacement attorneys. You must tell the Office of the Public Guardian (OPG) and send them the required paperwork.
The Office of the Public Guardian is an official body which protects people in England and Wales without the mental capacity to make certain decisions for themselves. A Power of Attorney must be registered with them before it can be used.