Power of Attorney

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As we live longer, more of us will have to think about how to manage our money and health, when we ourselves are not able to make decisions. That's where a power of attorney can help - so what is it, how do you get it, what are the drawbacks and advantages?

Q: What is a power of attorney?

A: A power of attorney gives people you trust the legal right to make decisions on your behalf should you become unable to. It can cover health & welfare, finances & property or both.

A will is quite separate to a power of attorney. A will is only effective on your death and has no legal authority prior to that. On the other hand, a power of attorney is effective whilst you are alive and allows others to act on your behalf whilst you are alive.

Q: Are there different types of power of attorney?

A: There are 3 different types of power of attorney: lasting power of attorney, enduring power of attorney and ordinary power of attorney.

There are two types of LASTING POWER OF ATTORNEY: one for making financial decisions and another for making health and care decisions. You can have one or both. An LPA isn’t permanent. You can cancel it at any time while you have mental capacity by sending the original LPA document and a 'deed of revocation' to the Office of the Public Guardian.

An Ordinary Power of Attorney (OPA) is for financial decisions only, and it's only valid while you still have mental capacity.

An OPA can be useful if you need someone to look after your finances temporarily – for example, because you’re going into hospital or away on holiday. You can limit the power you give to your attorney – for example, you could allow them to deal with your bank account but not your property.

AGE UK have a good guide which you can read here

Q: How important is it to think of a Power of Attorney

A: In many ways, a Power of Attorney is more important than a will, because if you die,

the money is going to go on to other people and you aren't affected. But if you are incapacitated and lose your ability to look after yourself or make decisions for yourself, it might be that your family can't access your savings. So you will have saved money but might not be able to spend it on your own care. That would be a tragic outcome and a power of attorney can fix that problem, if you take it out while you are well.

Q: How to get a power of attorney?

A: I'd say the best way to arrange it is to go through a solicitor. That will cost you - and the bills I have heard generally range from £200 to £500.

Each incorrectly completed document can be rejected after it’s been submitted for registration – sometimes for the smallest of reasons – which can lead to delays and additional fees if it then has to be corrected and resubmitted. So if you are doing it yourself, be very particular about how you fill out the forms.

But you can do it yourself. Which? have an online service which guides you though the steps you need to take. The online portal is here. Rather frustratingly and annoying is that it doesn't clearly say how much the service costs - but presumably if you start then process it will tell you.

You can also do it directly on the government's website. Their online portal is here.

The advantage of using the government website is that it is free. But they don't review your form, so if you are doing it this way, be careful to ensure all the details are correct.

Q: What are the cost of registering the POA?

It differs depending on where you live

England and Wales

You need to register the document with the Office of the Public Guardian (OPG). It charges a fee of up to £82 per document.

Scotland

You’ll need to sign your power of attorney in the presence of a solicitor registered to practice law in Scotland, a practising member of the Faculty of Advocates or a registered UK medical doctor who holds a licence to practise. A fee will be payable to them. Each document must be registered with the Office of the Public Guardian (Scotland) and they charge a fee of up to £87 per document.

Northern Ireland

The power of attorney can be used as soon as it’s signed and witnessed. The POA needs to be registered by your attorney with the Office of Care and Protection (OCP) when you lose mental capacity, and they charge a fee of up to £151.

Q: Who should take control of my decisions if I can't?

A: You could choose someone you're close to, such as a family member or friend. Or you could choose a professional, such as a solicitor. You can appoint as many attorneys as you like. You can decide whether multiple attorneys jointly, meaning they must make all decisions together or jointly and severally, meaning they may act together or separately, as they choose.

Q: What if an attorney is not acting in a person's best interest?

According to Age UK - If you're worried that your attorney isn't acting in your best interests, or that someone else's attorney isn't acting in their best interests, contact the Office of the Public Guardian. They have a responsibility to investigate allegations of mistreatment or fraud. If necessary, they can also report concerns to the police or social services. You can get in touch with the Office of the Public Guardian by calling 0300 456 0300 or by emailing them on customerservices@publicguardian.gov.uk. 

Q: Who decides if a person no longer has the capacity to make decisions for themselves?

According to Dimentia UK:

A formal assessment of mental capacity can be carried out by a professional such as a GP, social worker for decisions about health or care; or a solicitor for legal or financial decisions. They must consider two questions:

1. Does the person have an impairment or disturbance in the functioning of their mind or brain?

2. Does that impairment or disturbance mean they are unable to make the specific decision in question?

   
   

A formal assessment of mental capacity only covers the specific decision being made at that time – eg whether the person should receive an immediate medical treatment. If there are further decisions to be made, each will need a separate assessment.

However according to the Law Society "no professional sign off is necessary for an LPA to be activated." That can make it open to abuse and so do be caerful who you giver the authority to.

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