What is Power of Attorney?

What does Power of Attorney mean in the UK?

Granting Power of Attorney allows an appointed person, or persons, to make decisions on your behalf around your finances, property, health, and welfare. It allows you to appoint people, known as ‘attorneys’, to make decisions for you in the event you’re no longer able to do so.

Generally, you would put Power of Attorney in place yourself while you still had the mental capacity to do so. But if something happens that means you lose your mental capacity without having done so, a family member can ask the courts to grant them power to make decisions on your behalf.

There are different types of Power of Attorney, but the most substantial one legally is called Lasting Power of Attorney (LPA).

What is Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is the most common type of Power of Attorney arrangement, used to give a loved one the power to make decisions on your behalf if necessary.

You’re known as the donor, the person who makes the LPA. The person you appoint to make decisions is your attorney. An official legal document, an LPA grants your attorney permanent authority over your decisions in relation to health, welfare, property and finances.

You make and register an LPA with the UK Government. And it must be registered before it can be used.

An LPA offers long-term security as it doesn’t expire – but it can be cancelled by the attorney or the doner (you, if you made the LPA) provided they still have mental capacity.

When talking about LPAs, the terminology is that you ‘make’ an LPA. There are two types of LPA – health and welfare, and property and financial affairs.

What’s an Ordinary Power of Attorney (OPA)?

An Ordinary Power of Attorney (OPA) is designed to give someone the authority to make decisions on your behalf for a set period of time. This could include if you’re temporarily unwell, recovering from an accident, or travelling overseas. It’s short-term and doesn’t need to be registered with the Office of Public Guardian.

What’s an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney (EPA) was replaced by the LPA in 2007. It’s not possible to obtain an EPA today. This document was previously used to make decisions on behalf of someone before their mental health capacity had diminished.

When might you choose to appoint a Lasting Power of Attorney?

Recent medical diagnosis

You may choose to appoint a Power of Attorney following a medical diagnosis. For example, if you were diagnosed with dementia and wanted to put your affairs in order.

Future peace of mind

An LPA can help to provide peace of mind, knowing you’ve appointed someone to take important decisions if needed.

Long-term relationship

You may decide to appoint your partner as Power of Attorney, so they can take care of your affairs if you’re not able to.

Substance use problems

An LPA allows your attorney to make decisions in your best interest. This may involve supervising or mitigating a vulnerable person’s spending.

Who can be your Lasting Power of Attorney?

Your Power of Attorney needs to be 18 or over and have the mental capacity to make their own decisions. They may be a relative, a friend, a spouse, or even a professional like a doctor or a solicitor.

You can choose to have more than one attorney if you wish, but you must also decide whether they should make decisions together or separately.

When deciding on your attorney, consider:

• How well they manage their own affairs
• Whether you trust them
• How well you know them
• If they’d be comfortable making decisions for you

How to Make a Lasting Power of Attorney

You can appoint your own Power of Attorney – provided you have the mental capacity to do so. Here’s how to give Lasting Power of Attorney:

• Appoint your attorney/s - First, appoint one or more attorneys. They must be over 18 and have the mental capacity to make decisions.
   
• Choose paper or online application - To make a Lasting Power of Attorney, you can complete the forms online at GOV.UK or download and print paper forms.
   
• Sign the application forms - The forms need to be signed by all attorneys, witnesses and a ‘certificate provider’. The ‘certificate provider’ confirms that you’re making the appointment of your own free will.
   
• Submit the application - Once signed, you can submit the application. It’s worth remembering that the process is usually faster if it’s made online.
   
• Register with the OPG - Your LPA must be registered with the UK Government’s Office of the Public Guardian. You can apply to register yourself or your attorney can do it.
   
• Certify your LPA - Certifying your LPA confirms that your registered Power of Attorney is genuine. Your LPA can also be certified by a solicitor.

Mental capacity and Power of Attorney

Mental capacity means you’re able to communicate your thoughts clearly and make decisions. And to make a Lasting Power of Attorney yourself, and to choose an attorney to make decisions on your behalf, you must have mental capacity. If this isn’t the case, and someone is appointing themselves on your behalf, it must go through the Court of Protection.

What if I lose mental capacity before granting Power of Attorney?

If you lose your mental capacity and have not already made a Lasting Power of Attorney, you may need someone to make financial and health-related decisions on your behalf. They would need to apply to the Court of Protection. The court can then decide whether to appoint them as your ‘deputy’.

How to get Power of Attorney

The person applying to the Court of Protection must prove that the individual has lost mental capacity. This may be after an accident resulting in brain injury, or as result of an illness like dementia.

Checking mental capacity

Assessing mental capacity isn’t simple. Whether it’s age, learning disability, a mental health condition or substance abuse, there are multiple factors that can impair someone’s ability to make their own decisions.

If you’re not sure whether a loved one has mental capacity, a doctor can check this following the Mental Capacity Act Code of Practice.

Making decisions as a Power of Attorney

If you’ve been appointed as someone’s attorney or deputy by the Court of Protection, you’re taking on a substantial responsibility.

You’re required to:

• Provide them with all the help they need to make each decision before you determine that they don’t have the capacity to make it themselves
• Ensure any decisions you make must be in their best interests
• Try to avoid making decisions that restrict their human and civil rights wherever possible

Please note: Each situation is unique, and you may wish to seek your own professional legal and financial advice to make sure your estate is managed in accordance with your wishes in the event of your death.