When planning for the later years of life it is important that you put the right plans in place to protect your estate and your loved ones. Power of Attorney is an important legal document that gives someone you trust the authority to make decisions or take actions on your behalf if you are unable to do so. However, there are different types of power of attorney relevant to different circumstances.
Here, we make sense of the different types of Power of Attorney and how they can be used.
Why would you need a power of attorney?
A Power of Attorney (PoA) is a legal document that grants one or more trusted individuals — known as your “attorneys” — the authority to make decisions on your behalf. This arrangement can be invaluable in situations where you can no longer make or communicate your own decisions. It’s important to consider proactively establishing a PoA, as it can simplify matters significantly when the time comes.
There are various scenarios where a PoA may be necessary. For instance, if you are temporarily hospitalised, your solicitor can assist with everyday tasks like managing finances and paying bills. Alternatively, a PoA can serve as part of a long term planning strategy. For example, if you have been diagnosed with a condition such as dementia, setting up a PoA can help ensure that your preferences are respected should you lose the capacity to make decisions in the future.
By appointing an attorney, you can ensure that trusted individuals will act in your best interests, whether for short-term needs or more extended periods of incapacity.
What is mental capacity?
When considering a Power of Attorney, it’s important to reflect on the decisions that may need to be made on your behalf. You should also determine whether you want your attorney to act while you still have mental capacity or only if that capacity begins to decline.
Having mental capacity means making your own decisions and understanding their consequences. No one can make decisions for you unless it is demonstrated that you lack this capacity. If you lack mental capacity for a specific decision, it indicates that you are unable to do one or more of the following:
- Understand the relevant information regarding the decision.
- Weigh that information to reach a conclusion.
- Remember the information long enough to make your decision.
- Communicate your decision, whether verbally, through sign language, or by other means.
It’s important to note that mental capacity can vary depending on the type of decision being made. You might be capable of making certain decisions but not others and your capacity can also fluctuate over time. This means anyone assessing your mental capacity needs to evaluate your ability to make and communicate a specific decision at the time it is required.
You should receive as much assistance as possible to help you make and communicate your decisions before anyone concludes that you lack mental capacity. Taking time to consider or express a decision should not be mistaken for an inability to make decisions.
Additionally, having a condition like dementia does not automatically mean you lack mental capacity; many individuals retain the ability to make certain decisions for a significant time after their diagnosis.
For more information on mental capacity, visit GOV.UK.
Types of power of attorney
In the UK, there are three different types of Power of Attorney:
1. General Power of Attorney
Applicable whilst you still have mental capacity. This type of attorney gives your chosen attorney the authority to decide and act on your finances.
2. Lasting Power of Attorney
There are two types of Lasting Power of Attorney; the first relates to property and financial affairs, and the second to health and welfare. The former enables your attorney to decide about your finances with your permission or if you lose mental capacity. The second enables the attorney to do the same relating to your health and care needs.
3. Enduring Power of Attorney (EPA)
An EPA is an old version of what has now become a Lasting Power of Attorney and relates to property and financial affairs. If you made an EPA before 1 October 2007 (when it changed to a Lasting Power of Attorney), it is still valid; however, you can no longer set up an EPA now.
How should I choose my attorney?
You should select someone that you trust as they could be making significant decisions about your finances and healthcare on your behalf. Your attorney must always have your best interests at heart.
Many people consider a partner or spouse, a friend, another family member, or a professional person, like a solicitor. You may decide to nominate more than one attorney, but you will need to be clear about their role in decision-making and whether they all need to agree or not.
How to set up a power of attorney
When people discuss the role of a power of attorney, they are often referring to a lasting power of attorney. This legal document enables someone you trust to make decisions on your behalf if you lose the mental capacity to do so yourself, helping you plan for the future.
Step 1: Obtain the LPA forms
To set up a lasting power of attorney, you’ll need the LPA forms and an information pack from the Office of the Public Guardian. You can either download these forms from their website or order them by calling their hotline. Alternatively, you can complete the LPA process through the online service on GOV.UK.
Step 2: Completing the forms
You can fill out the forms yourself, but make sure to double-check for any errors – mistakes could lead to your LPA being rejected, and you’ll need to pay a fee to reapply. To guide you through the process, the Office of the Public Guardian provides a step by step guide online.
Step 3: Signing the forms
The completed forms must be signed in a specific order:
- You (the ‘donor’) must sign the form first, with your signature witnessed.
- The certificate provider signs next. This person confirms you understand the LPA and that no pressure was applied.
- Finally, your attorney signs the form, and their signature must also be witnessed.
If the forms aren’t signed in the correct order, they’ll be rejected, and you’ll have to reapply.
Step 4: Choosing a certificate provider
The certificate provider must be someone who’s known you for at least 2 years or a professional like a doctor, solicitor, or social worker. Family members or your partner can’t be your certificate provider.
Step 5: Registering the LPA
Once the form is signed, it must be registered with the Office of the Public Guardian. You can’t use your LPA until this registration is complete, which can take a few weeks. If you lose mental capacity before registering, your attorney can register it on your behalf if you signed the LPA while still having capacity.
Do I need a solicitor to set up a lasting power of attorney (LPA)?
While it’s not necessary to hire a solicitor to create a lasting power of attorney (LPA), it may help avoid complications later—especially if you’re unsure of the process or your affairs are complex. Although more expensive than completing the forms yourself, professional advice could provide the peace of mind you need.
Solicitor fees for setting up an LPA can vary, so it’s a good idea to contact several firms for quotes before deciding.
What should I do if I have a problem?
If you’re concerned that your attorney isn’t acting in your best interests, or if you suspect that someone else’s attorney isn’t, it’s important to take action. Contact the Office of the Public Guardian for help. They investigate allegations of mistreatment or fraud and can report issues to the police or social services if necessary. You can reach them by emailing customerservices@publicguardian.gov.uk.
If you’re worried about abuse or neglect, you should also contact your local council’s safeguarding team. They are responsible for investigating such concerns and will take appropriate action when needed.
If you or someone else is in immediate danger, call the police on 999.
A helping hand at home
For 80 years, Prestige Nursing & Care has been trusted by our clients and their families to provide competent and compassionate home care. Our care is focused on improving health and overall well-being, and all in the place people love most – their own homes.
Call us on 0808 239 1525 and our friendly care experts will discuss your care and support needs. You can also fill out our online enquiry form or email info@prestige-nursing.co.uk. We provide impartial guidance and advice so you make the right choice for you and your family.
