What is “Power of Attorney”

We are often asked to talk about PoA or Power of Attorney to units about to deploy but in reality this legal document has far greater utility in life than one would expect and, equally, is sometimes more complex than you think, to bring into use.  Below we offer some general information on PoA and its forms and uses.

What is it exactly
Power of Attorney is a legal document where one person (the donor) gives another person the right to make decisions on their behalf.  If you want someone to act on your behalf in financial or medical decisions, you'll need to give them Power of Attorney over your affairs. You can only set up a Power of Attorney while you still have the ability to weigh up information and make decisions for yourself, known as 'mental capacity' - so it's worth putting one in place early on.

Lasting Power of Attorney (LPA)
Lasting Power of Attorney is the most common form of Power of Attorney. It is an ongoing arrangement with no expiry date that will allow another person to make decisions on your behalf. Once the document is registered, it can be used immediately, with your permission while you still have capacity, or it can take effect from when you lose mental capacity.

An LPA has to be registered with the government, through the Office of the Public Guardian.   This process only applies to England and Wales, there are separate arrangements for Scotland or Northern Ireland.

Types of Lasting Power of Attorney (LPA)
There are two types of Lasting Power of Attorney. It is recommended that you seriously consider setting both up at the same time. Many people do this while reviewing or revising their will, and you may be able to use the same solicitor.

Property and financial affairs LPA.  This gives your attorney the power to make decisions about your money and property, including:

• managing bank or building society accounts
• paying bills
• collecting a pension or benefits if necessary,
• selling your home. 

Once registered with the Office of the Public Guardian, it can be used immediately, or held in readiness until you lose capacity.

Health and welfare LPA.  This gives your attorney the power to make decisions about:

• your daily routine (washing, dressing, eating)
• medical care
• moving into a care home
• life-sustaining medical treatment.

It can only be used once you are unable to make your own decisions, though you will need to agree to it while you still have capacity.

Enduring Power of Attorney (EPA)

Enduring Power of Attorneys is no longer an option for individuals to consider however EPAs set up before October 2007 can still be used to control the property and financial affairs of the donor. If the donor still has mental capacity, an existing EPA can be used without being registered with the Office of the Public Guardian. If the donor lacks capacity, for example, as the result of dementia or a stroke, the EPA must be registered to be used.

Ordinary Power of Attorney
An Ordinary Power of Attorney gives another person authority to act on your behalf for a limited time period – this is often used by those who are about to deploy to ensure their spouse/partner can deal with joint legal matters whilst they are on operations.  Please note that as soon as you lose mental capacity, the Ordinary Power of Attorney will expire. This means it's not suitable if you need someone to manage your affairs after you've lost the ability to do it yourself.

If you choose, you can specify a time period for an Ordinary Power of Attorney, or restrict it to specific activities. You don't need to register this document with the Office of the Public Guardian.

Do you need a LPA and an Ordinary Power of Attorney?   The graphic below highlights the difference between a Lasting Power of Attorney and an Ordinary Power of Attorney to help you decide which one you need.

Power of Attorney in Scotland
In Scotland, Ordinary Powers of Attorney are known as General Powers of Attorney (GPA) and do not need to be registered before use.  Where the person giving authority lacks capacity, a Continuing Power of Attorney (CPA) is required to control their financial affairs. This must be registered with the Scottish Office of Public Guardian (OPG). For decisions about a granter’s health and welfare, a Welfare Power of Attorney (WPA) is required. This also needs to be registered and can only be used if the donor lacks capacity.

Power of Attorney in Northern Ireland
In Northern Ireland, EPAs are still used. They can be ordinary Power of Attorneys if the donor retains capacity.  If the donor lacks capacity, only an Enduring Power of Attorney that has been registered with the Office of Care and Protection may be used.

What is your duty of care as an attorney?
So what does it mean to me if I am nominated as an attorney for someone?  Acting as an attorney obliges you to maintain a duty of care to the donor, not to benefit yourself. It’s important to avoid any potential conflicts of interest.  Specifically, you must keep the donor’s money and property separate from your own and keep accurate accounts in all of your dealings as an attorney.

When do you need Lasting Power of Attorney?
Putting in place a Lasting Power of Attorney can give you peace of mind that someone you trust is in charge of your affairs. If you're facing an illness, or believe your mental capacity might deteriorate, it's worth thinking about who you would like to handle your affairs.

If you would like to chat more about PoA please do get in touch and we can chat you through it or pass you on to one of panel of professional advisors for a conversation about cost and applicability.