What is Power of Attorney & Why Do You Need it?

As we age, it is important to get important documents in order, including your will and power of attorney. But what is power of attorney? This blog will discuss this topic and how you can get yours in order before moving to a care home.

grandfather holding phone with granddaughter
Discussing Power of Attorney and Palliative Care

What is Power of Attorney?

While it might seem daunting. Appointing a power of attorney can give you peace of mind knowing that your affairs are in order. It also ensures that your loved ones will not have to go through the stress and expense of applying to the court to be appointed as your legal guardian.

This document gives another person the legal authority to make decisions on your behalf if you lose ‘capacity’. This could be due to incapacity or disability. A Power of Attorney is the name of a relationship between a ‘Donor’ and an ‘Attorney’ or ‘Donee’. This grants them the power to act on the behalf of the donor when managing their affairs.

Power of Attorney is a legal document that enables one or more people to act on someone else’s behalf if that person is no longer able to make or communicate their own decisions. Setting up a Power of Attorney can help you to convey your choices and preferences for your health and wellbeing, as well as your finances and property.

Why Might You Need a Power of Attorney?

Appointing a power of attorney could be for a variety of reasons. It is a result of an inability to manage one’s affairs. This could be due to a diagnosis of dementia, for example. It may also be the case that you are going overseas for an extended period and need someone to act on your behalf in your absence. Regardless, it is important to appoint someone you trust to make decisions on your behalf.

Different Types of Power of Attorney

There are three different types of Power of Attorney, all of which operate in slightly different ways. We will discuss each type to ensure that you can select the right option for you.

Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a type of Power of Attorney that comes into effect if you lose mental capacity. This can happen due to an illness, an accident or simply the natural ageing process. It is important to note that this type of Power of Attorney only applies in England and Wales. In Scotland, there is a similar document known as a ‘Continuing and Welfare Power of Attorney’. However, due to a change in the Law in 2007, you can no longer appoint an EPA. However, if one was appointed before 2007, this remains in effect upon registration.

Lasting Power of Attorney

Lasting Power of Attorney (LPA) can take effect both whilst the Donor has the capacity and once the Donor has lost capacity but this will depend on how the LPA is worded and whether the LPA has been registered. LPAs do not expire during the Donor’s lifetime. This provides flexibility for the donor whilst they maintain their mental capacity.

There are 2 forms of LPA, both of which are slightly different.

  • Property and Financial Affairs: This type of LPA gives the donee the power to make decisions about your property and your money.
  • Health and Welfare: This type of LPA allows the attorney to make decisions about your medical care.

General/Ordinary Power of Attorney (GPA)

General Power of Attorney (GPAs) are often used as a short-term solution until the Donor can resume control. This differs from EPAs and LPAs as it does not have to be registered and is valid once the Donor signs it. However, a GPA can only be used if the Donor retains mental capacity.

How to Appoint Power of Attorney

To set up an LPA there are prescribed forms that are required. These can be found on the Government website Lasting power of attorney forms – GOV.UK (www.gov.uk).

When completing the forms, the Donor must consider a few things.

Firstly, the Donor will need to consider who they want to appoint as their attorney. This could be a friend, family member or solicitor. It is important to choose someone you trust to make decisions on your behalf. If there is more than one attorney, the Donor may choose for them to act together or ‘severally’ depending on the different tasks and affairs. 

Secondly, the Donor may want to consider a replacement attorney. Gurthermore, they should consider any restrictions that may want to place on the attorney.  For example, the Donor may want to limit what the authroity an attorney has over certain decisions. As part of completing an LPA, the document must include a certificate that has been given by someone who has known the Donor personally for two years, for example, a solicitor, GP or a friend. This certificate ensures that the Donor has full mental capacity before the LPA is validated.

Submitting Forms

Once the form has been completed, the next step is sending them to the Office of the Public Guardian alongside payments for registration. Registering an LPA can take up to 8-10 weeks and will be sent to you or the solicitor you have appointed.

When completing GPAs, factors the Donor needs to consider are similar to an LPA. The Donor will only need to consider who they want to appoint as their attorney and how they want them to be appointed. There is no prescribed form for a GPA but there is a standard form of wording which must be used to make it effective. The wording for a GPA can be found on the Law Society website Ordinary powers of attorney | The Law Society.

What to Do if you Don’t Have a Power of Attorney in Place

If you do not have this in place and lose your mental capacity, what can be done?

An application can be made to the Court of Protection. This gives someone else the legal authority to make decisions on your behalf (a deputy), in a similar way to an LPA. They will follow the same rules as an attorney to ensure your best interests are being met. The application must be made by a friend or relative and will need to prove that you lack mental capacity. More information about how to apply for a Deputyship Order can be found on the GOV.UK website: Apply to become someone’s deputy – https://www.gov.uk/become-deputy  

Contact Us

Whilst we cannot appoint one for you, we hope that this blog has helped to clear up the question, what is power of attorney? For more information, visit the GOV.UK website or contact your solicitor to have them guide you through the process. To learn more about our residential and respite services at Hilgay Care Home, explore our website or contact us today on 01444 244756 or info@hilgaycarehome.co.uk.

Article: Phoenix Marketing