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.
What is 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 attorney 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.
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:
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.
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.
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?
It is imperative that you 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.
Putting a lasting Power of Attorney in place
The first step is to complete a form available from the Office of the Public Guardian (OPG), which must then be registered with OPG to achieve validation. This usually takes around ten weeks.
You must sign the Lasting Power of Attorney with your attorney and an independent witness. The witness must confirm that you have the mental capacity to appoint a lasting power of attorney and that you are not under any pressure to do so. The witness can be someone you know well and trust or a professional such as your GP, social worker or solicitor.
If you have decided to set up two Lasting Powers of Attorney, one for finance and property and the other for health and welfare, you will need to complete two separate forms. Registering a lasting power of attorney costs £82 for each one, although you may pay less if you are receiving support from your local authority.
What to do if you have problems with your attorney
If you suspect that your attorney is not acting in your best interests, or if you have concerns about another person’s attorney, it’s important to take action. The Office of the Public Guardian (OPG) is responsible for addressing allegations of misconduct or fraud. They can investigate your concerns and, if necessary, escalate issues to the police or social services.
If you believe there is ongoing abuse or neglect, you should contact your local council’s safeguarding team, which is tasked with investigating such matters and taking appropriate action.
In cases where you or someone else is in immediate danger, call the police at 999.
For confidential support, you can call the Hourglass helpline, where trained professionals can provide assistance and guidance.
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.
