What is Power of Attorney?
A Power of Attorney is the grant of legal authority for another person (or persons) to make important decisions and manage your affairs on your behalf in circumstances where you are unable to do so yourself.
When you apply for Power of Attorney you are known as the ‘donor’. Any individual that you appoint to act on your behalf will be known as the ‘attorney’.
Do I need Power of Attorney?
There are number of practical and health-related reasons why you might need another person to make decisions or manage your affairs for you, either in the short or long-term. You may require a prolonged stay in hospital or, alternatively, you could be suffering from a degenerative condition that is likely to affect your mental capacity in the future.
Knowing how to get Power of Attorney may help you to make an informed decision as to whether this process is likely to be of benefit to you.
What are the types of Power of Attorney?
Before we examine how to get Power of Attorney, it is important to consider the different types that you can apply for. You are not limited to one particular type, and it can often be sensible to set up more than one.
Ordinary Power of Attorney
An Ordinary Power of Attorney (OPA) allows another individual to make financial decisions on your behalf. This power can extend generally to all financial matters, or be limited to certain aspects, for example, allowing access to your bank accounts.
An OPA is only valid whilst you have the mental capacity to make your own decisions. As such, this type of Power of Attorney may only be suitable in the following circumstances:
- you temporarily need someone to act on your behalf, for example, if you are in hospital for a long period and need help paying your bills
- you are physically struggling to get out to the bank or post office and you need someone to be able to access your account(s).
Lasting Power of Attorney
If you would like to appoint someone to act on your behalf in the event of illness or accident that may leave you physically or mentally incapable of managing your own affairs, you will need to apply for a Lasting Power of Attorney (LPA).
There are two different types of LPA:
- health and personal welfare LPA
- property and financial affairs LPA.
A health and personal welfare LPA will provide your appointed attorney(s) with the legal authority to make decisions about your health care, where you live and even life-sustaining treatment.
A property and financial affairs LPA will give your attorney(s) the power to make decisions about your money and property. This could include anything from collecting your pension and paying your bills, to selling or renting out your property if you move into a care home.
A health and personal welfare LPA can only be used in the event that you lose the mental capacity to make your own decisions. A property and financial affairs LPA can be used whilst you still have mental capacity, although you can expressly provide for it to come into force only if you become unable to manage your own financial affairs.
You can also restrict the types of decisions that your attorney(s) can make on your behalf, as well as making advance decisions whilst you have the mental capacity to do so, for example, that you would like to refuse certain medical treatment.
Enduring Power of Attorney
Whilst it is no longer possible to make an Enduring Power of Attorney (EPA), any EPA made prior to 1 October 2007 remains valid. An EPA deals only with property and financial affairs, not with health and personal welfare issues. Under the Mental Capacity Act 2005 EPAs have now been replaced with LPAs relating to property and financial affairs.
What are the prerequisites for how to get Power of Attorney?
As part of the process of how to get Power of Attorney, there are certain legal requirements that must be satisfied. In particular, as the donor you must:
- be aged 18 or over
- have the mental capacity at the time of signing to make your own decisions.
Choosing who will act on your behalf is also a key part of how to get Power of Attorney. In particular, any attorney that you appoint must:
- be aged 18 or over
- have mental capacity
- in the case of an attorney appointed to look after your property and financial affairs, that individual must not be a bankrupt.
You can appoint more than one attorney to act either jointly, or jointly and severally, ie; where they can act together or individually on different issues.
The role of an attorney involves a great deal of power and responsibility. When choosing an attorney it is therefore important that you trust them implicitly as they may need to make important decisions about your health, personal welfare and financial affairs. An attorney could be a spouse or civil partner, a family member, trusted friend or legal adviser.
What is the process of how to get Power of Attorney?
To set up an Ordinary Power of Attorney (OPA) you, or your legal advisor, will need to use a standard form of wording, although there is no requirement for the OPA to be registered.
If setting up a Lasting Power of Attorney (LPA) you will need to complete and sign the relevant forms. There is a different form for each type of LPA with separate fees. You will need to register your LPA with the Office of the Public Guardian, together with the correct registration fee(s).
Registration does not in itself mean that the LPA must be used straight away, but it will only take effect once it has been registered.
What will happen in the absence of Power of Attorney?
If you are married or in a civil partnership, it is easy to assume that your spouse or partner will have the legal authority to take care of all personal and financial matters for you. This is not necessarily the case. Further, in circumstances where you lose mental capacity as a result of illness or accident it will no longer be possible for you to obtain power of attorney.
If there is a need for any decisions to be made on your behalf, the Court of Protection may appoint a deputy to act for you. Like an attorney, a deputy will be able to make important decisions about your health, personal welfare and financial affairs.
If there is no family member or friend willing to act, or if any willing applicant is deemed unsuitable, the Court may appoint a representative from the local authority or a specialist deputy from an approved panel.
Should I seek legal advice on how to get Power of Attorney?
Whilst many of us would prefer not to contemplate a time when we may no longer be capable of making our own decisions, putting in place a Power of Attorney can give you peace of mind that someone you trust will act in your best interests.
By making a Lasting Power of Attorney you are able to choose in advance who will be responsible for managing your affairs should the need arise. In the absence of a Power of Attorney where decisions need to be made about you health, welfare and financial affairs you will have no say in who the court appoints as your deputy, nor in the scope of power granted.
Seeking expert legal advice will help you to understand how to get Power of Attorney, as well as the legal implications of having an attorney act on your behalf. Your legal advisor can draft the Power of Attorney for you. They will also be able to help you change or revoke any existing Power of Attorney.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
