Having Power of Attorney (PoA) allows someone to make decisions on another’s behalf. It’s officially a legally binding document between a ‘donor’ (the person requesting the PoA) and an ‘attorney’ (the person appointed). There are three types in the UK, with each specifying slightly different permissions. For example, the permissions given under Ordinary PoA are different to that of Lasting PoA.
This article explains the intricacies around the different types of Power of Attorney, how to set one up, how to manage the selection process and why, for many individuals, it’s an incredibly important tool for peace of mind and future planning.
If you would like to speak to an approachable, experienced Power of Attorney Solicitor about setting up a new, or amending an existing one, reach out to our team today, or visit your local branch.
The different kinds of Power of Attorney in the UK
In the UK there are two different options when it comes to setting up a Power of Attorney. Ordinary, and Lasting. Each provides the attorney with different permissions, and it is up to the donor to decide how to proceed. There are also sub-sections for consideration that sit underneath Lasting Power of Attorney – these concern financial and property matters, and health and welfare, of which we will explore in more detail below.
One of the most important factors when considering setting up a Power of Attorney is that the donor has the mental capacity to be able to grant power to their chosen individual(s).
Ordinary Power of Attorney
OPA (Ordinary Power of Attorney) is the lowest ‘level’ of power that can be granted. It refers to specific, or temporary periods of time, and is only applicable whilst the donor has the mental capacity to make their own decisions. This can be useful for individuals expecting to undertake a hospital stay, or if a disability stops the donor from doing certain tasks. As a donor, you will set the boundaries of the power and an end date, unless you lose mental capacity beforehand, in which case it automatically ceases.
It is recommended that an OPA is granted to someone trusted, such as a close friend, known neighbour or family member.
Lasting Power of Attorney
LPA (Lasting Power of Attorney) is the most popular type. This PoA gives certain longer term permissions, and it is valid only after it is registered and it cannot be used until the donor loses their mental capacity. An LPA will cease once the donor passes away. As a donor granting an LPA, you may wish to choose from two sub-types (generally donors choose both): property and financial affairs, and/or health and welfare.
Lasting Power of Attorney regarding property and financial affairs typically involves granting access to bank and accounts and investments. This would also cover assisting with managing day-to-day bills and expenses, such as paying the mortgage and ensuring that any state benefits are received.
Health and welfare is focused around supporting decisions linked to physical or mental health. It is a consideration for those who have a deteriorating mental illness, such as dementia, as it will mean your future care is always in your best interest, based around what you want.
When granting an LPA, it is imperative that you choose an attorney (or attorneys) who you fully trust, as they will be responsible for your livelihood if you become incapable. Most people choose a spouse or family member.
Before 1 October 2007, Enduring Power of Attorney (EPA) was a third option available to donors. The only differences between LPA and EPA are that EPA can be used even before the donor has lost the ability to manage their own affairs, and it does not cover health and welfare.
Each Power of Attorney can be revoked if needed, however the donor needs to be of capable mental capacity in order to do so. This is why it is so important to select the right individuals who you are comfortable can fully manage your affairs, in your best interest.
How to choose the right Power of Attorney
If you’re unsure on how to go about choosing the right person or people, we’ve put together some tips to help you decide.
- You should be confident that they will look after your property, finances and health in a way that aligns with your preferences – can you communicate openly with them about your needs, wishes and requirements?
- Do you deem them responsible?
- Are they well equipped to deal with your current and future needs?
- Are they able to make fair and sound judgements, even when the situation is more complex?
- Do they have the availability to support you? And are they happy to commit to the responsibilities?
There may be more than one person you would like to grant power to. In this case, you may select joint attorneys, ensuring collaboration on decisions. If you do not have anyone you feel you can trust to be your power of attorney(s), it is also possible to choose a trusted solicitor to look after your affairs. You may wish to speak to your chosen Power of Attorney solicitor to seek legal counsel on how this would work.
How to set up a Power of Attorney
Lasting Powers of Attorney are the most popular type, so below we have detailed the step-by-step process for setting one up. Your solicitor will be able to talk you through any differences to the process for Ordinary Powers of Attorney.
- Decide what person or persons you would like to allocate as your LPA. It is beneficial to have agreed this beforehand with them so they can confirm they are happy to take on responsibility for you.
- Discuss and confirm with your solicitor what type of LPA you would like to proceed with. You may wish to focus solely on finances and property, or health and welfare, or both.
- Your solicitor will assist you in filling out the necessary forms to ensure that all the information provided is correct, and reflects your wishes.
- You will need to elect a person to sign your application as a ‘certificate provider’. This person will have known you for at least two years, and can be a friend, neighbour, doctor etc. They will be signing the forms to confirm that you understand the LPA agreement. These signatures will need to be witnessed, this can be done by your solicitor.
- Submit the forms for approval and pay the associated fees.
It is possible to set up a Lasting Power of Attorney yourself through the government website; in some circumstances this may be the most straightforward process for you as an individual. However, if there are any complexities to your case or you wish to ensure you fully understand the process and what it will mean once the power is in place, we highly recommend employing the services of a qualified solicitor.
In conclusion
Power of Attorney can provide total peace of mind that should you lose the capability to make decisions for yourself, you are in the best hands; whether through a loved one, or in a professional capacity. Delving into the different types, making the right choice and setting up, we hope you now have a better understanding of what it means to elect a Power of Attorney for your future.
We have a dedicated team of experienced solicitors who are happy to help you get started, whether that’s answering initial questions or starting an application. Get in touch today.
We have solicitors offices in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington, or Richmond Upon Thames.
FAQ’s
What decisions cannot be made by Power of Attorney?
There are various decisions that cannot be made by a Power of Attorney. This is because, with LPA, the donor will decide what permissions are given in terms of financial and property and health and welfare, but this does not stretch to aspects such as:
- Marriage/divorce
- Adoption or parental rights
- Voting
- Illegal activities
- Anything that will restrict the donor’s freedom.
Who cannot be a Power of Attorney?
You may choose anyone to be your Power of Attorney, apart from one scenario: You are unable to select someone who is bankrupt, to look after your finances.
Why is a Power of Attorney important?
PoA is important for a number of reasons. It provides peace of mind that should you lose mental capacity in the future, you, and your best interests will be looked after. It also means there is less of a delay when it comes to making decisions about your financial or healthcare affairs.
Who signs a Power of Attorney?
For a Lasting Power of Attorney, the donor, certificate provider, attorneys and witnesses will all need to sign the documentation.
Who registers a Power of Attorney?
You, your attorney or your solicitor (with your permission) are able to register a Power of Attorney.
Can you have more than one attorney at the same time?
Yes, you may choose as many attorneys as you like. In some situations it may be wise to consider having more than one to help with decision-making. Your solicitor will be able to help you if you are unsure.
How long does it take to set a Power of Attorney up?
It can take as little as 8-10 weeks to set up a Power of Attorney, on the basis that the application is straightforward and doesn’t contain any mistakes.
What if my Power of Attorney is unable or unwilling to act?
You are able to appoint a replacement attorney if the original person becomes unable or unwilling to act. If this is not a possibility, a court-appointed Deputy may need to decide who your replacement attorney is, which is managed by an application to the Court of Protection. This is an example where it may be beneficial to appoint more than one PoA.
