Understanding Powers of Attorney

Have you heard the term power of attorney and wondered what it meant? Perhaps you heard about it in relation to illness or advancing age, or maybe you’ve heard it used when talking about travel and finances. You might even have been told directly you need to set up powers of attorney and know to an extent what it entails, but remain a little foggy on the details.

In this article, we’ll provide an overview of powers of attorney, what it means, when you need it, and how it works.



What Does Power of Attorney Mean

Put simply, power of attorney means giving legal authority to someone to make financial or other decisions on your behalf. It is a legal document agreed upon and signed by both the donor (party bestowing powers of attorney) and attorney (custodian of those powers).

This legal process is used before a donor may otherwise become unable to take their own decisions, or not wish to within a certain matter, i.e. financially. Its purpose is to keep the donor’s affairs in order.

Some people may need to bestow powers of attorney while they are away or in hospital and arrange to do so temporarily. Others may be facing conditions that warrant longer-term or permanent arrangements, such as those diagnosed with dementia. Powers of attorney may be bestowed in case of mental incapacity.

What is Mental Capacity?

Many donors set up power of attorney when facing a loss of mental capacity, possibly due to a degenerative brain condition, for example. Essentially, if someone can no longer understand a decision or its implications, or make that decision, a previously assigned attorney will be able to make it for them.

The power of attorney agreement must be set up while the donor still has mental capacity.

The Different Types of Power of Attorney

Ordinary Power of Attorney

Ordinary power of attorney (OPA) is arranged when the donor still has mental capacity. They may simply want to bestow legal decision-making powers for periods spent in hospital or abroad, for example. This is often so that someone else has the right to make financial decisions while it is impractical for the donor to do so.

Lasting Power of Attorney

Lasting power of attorney (LPA) grants the chosen attorney power to make decisions about a donor’s finances or health and care. Decisions over health and care come into effect when the donor loses mental capacity, whereas property and finance LPAs can be used before or after. LPAs are set up either when donors do not want to make decisions for themselves or to come into effect when they no longer can.

Enduring Power of Attorney

Enduring power of attorney (EPA) was replaced by LPAs in October 2007. However, EPAs set up before that time should still be valid. EPAs are similar to LPAs but with some key differences:

●     EPAs did not cover dealing with a donor’s health and care

●     EPAs could be bestowed to multiple people, whereas LPAs are bestowed to one person who may then nominate others for some decisions

●     EPAs came into effect from the moment of signing, LPAs only once registered

●     LPAs require a witness to support the claim that the donor has lost mental capacity

There may be different types of decisions to consider in a power of attorney agreement. For example, a donor may still be able to make small decisions about what to eat but not about paying the bills. Power of attorney agreements can account for these distinctions.

The Role of a Solicitor or Family Law Attorney

You can set up a lasting power of attorney agreement without using a solicitor, however many people find it beneficial to use one. The necessary forms and information can be complicated to go over. A solicitor can fill out these forms for you and explain what it all means.

Solicitors can act as certificate providers, i.e. someone who confirms that you know and understand your LPA. The certificate provider must either be someone you know well or a professional such as a doctor, social worker, or solicitor. Your solicitor will naturally be familiar with the details and requirements of this process. 

It can also be a good idea to use a solicitor when you’re arranging for the management of particularly complicated or delicate affairs within a power of attorney agreement. For example, if there are complicated issues interconnecting family, finances, and care, consulting a family law attorney could be necessary.

Using a solicitor will make sure your LPA is airtight, and that your wishes are well understood and carried out to a tee, no matter the complexity of the case.

How to Set Up Lasting Power of Attorney

To receive an information pack on Lasting Power of Attorney and all the necessary forms, you need to contact the Office of the Public Guardian (OPG). Alternatively, the forms can be filled out online.

The OPG is a government organisation responsible for registering powers of attorney in order for them to come into effect. They also provide support to attorneys or investigate claims made against them.

Fill out the forms either by yourself or with assistance, then have them signed by an applicable certificate provider.

Register your LPA with the OPG. Unregistered LPAs will not come into effect, and it can take around 9 weeks to complete the registration process. You must have the mental capacity to register your LPA. If you lose mental capacity before registration is complete, your solicitor may be able to register for you.

Do You Need Will Writing Solicitors?

It’s important to recognise the difference between Wills and lasting power of attorney. If you have already taken care of a Will, this does not account for your affairs in the event of mental incapacity. Conversely, lasting powers of attorney end in the event of your death.

To make sure your affairs are taken care of according to your wishes in the event of mental incapacity and death, you need both an LPA and a Will. It is not strictly necessary to use a solicitor for Will writing, you can do it yourself, use a Will writing service, or use a Will and probate solicitor. Your Will needs to be witnessed and signed by two individuals over 18 and yourself.

As with LPA, it may be a good idea to use a solicitor when it comes to writing your Will if the management of your finances, money, property, and possessions is particularly complicated. For example, if you:

●     Live or have property overseas

●     Own a property with someone other than your husband, wife, or civil partner

●     Have potentially complicated family claims on your estate, e.g. previous spouses or children from separate relationships.

●     You own a business

Changes To or Issues With an LPA

Generally, you can’t make changes to an LPA once it’s been registered, which is why it’s so important to get it all right before you do. If you have concerns about an LPA, you can get in touch with the Office of the Public Guardian to discuss it with them. The OPG will investigate claims, and be able to contact other appropriate agencies, such as social services or the police if necessary.

Safeguarding Your Affairs with Someone You Trust

Powers of attorney, perhaps especially lasting powers of attorney, are important to protect your affairs when you otherwise can’t or it’s impractical to do so. It is a significant responsibility and authority to give to someone, so be sure to choose very carefully. At the same time, ensure your chosen attorney is well aware of all the implications of their role. It is a good idea to give prospective attorneys ample time to consider.

Remember that with an LPA for health and care, your attorney will determine everything for you - where you live, what you eat, how you are cared for, and more.

Almy & Thomas

If you’re looking for solicitors in Torquay, Torbay, Newton Abbey, and surrounding areas, Almy & Thomas are here to help. We can provide you with experienced and highly qualified Power of Attorney solicitors, as well as expert Will writing and probate services. For legal assistance on any of these matters, get in touch today.