What is a power of attorney?

Sometimes we all need a helping hand. But what if a short-term fix isn’t the answer? What if you become unable to make good decisions about your life, health, money, property?

Andrew Guilfoyle, a solicitor at the Hampshire-based law firm, Barker Son & Isherwood, explains how a Power of Attorney could help protect you and the things you own.

What is a Power of Attorney?

A Power of Attorney is a legal document that hands control of aspects of a person’s life (for example a family member) to someone else. There are two main types that are regularly used these days: an Ordinary Power of Attorney (OPA), and a Lasting Power of Attorney (LPA).

An OPA is generally put in place where someone (the ‘donor’) needs some temporary help with their financial affairs. Perhaps they’re going to be living abroad for a while, or will be incapacitated in hospital. Appointing an attorney to manage bills, investments and other money matters is sound legal authority for banks, businesses and other organisations to deal with someone other than the account-holder. (If you’ve ever tried to talk to a mortgage company or network provider about an account you’re not named on, you’ll know all about the data protection barriers.)

An LPA tends to be used in different circumstances, usually where someone has thought about the possibility that they could lose mental capacity. Mental capacity is a person’s ability to make and communicate informed decisions. That ability could be lost at any time and by anyone, perhaps because of a head injury or a debilitating condition like dementia. An LPA is put in place while the donor still has mental capacity, and is usually activated if capacity becomes lost – although the donor could choose for it to apply in different circumstances.

An attorney appointed under an LPA could be asked to take care of the donor’s property and finances (property and financial affairs lasting power of attorney), but may also have the power to make certain decisions about health and welfare (health and welfare lasting power of attorney- or health and welfare LPA). These could range from day-to-day decisions about what the donor should eat, to the medical treatment they should receive. It is up to the donor to decide who to appoint as attorney or attorneys and what their remit should be.

Can anyone get an LPA?

To make an enforceable LPA you must be at least 18 years old. You must also have mental capacity at the time the document is put in place.

What are the benefits of having an LPA?

Clients tell us that peace of mind is the initial benefit. Comfort comes from knowing that plans are in place. And if the time comes for your attorney to step up and start making decisions for you, the major benefit will be in having someone you know and trust looking out for you.

What if you don’t have an LPA?

Our legal system is set up not to abandon people who haven’t planned for the future. So there is no need to panic if you haven’t yet made an LPA. If you were to lose mental capacity tomorrow, a specialist court called the Court of Protection could appoint a ‘deputy’ to act in a similar way to an attorney. The downside to that, of course, is that you will not have had a say in who that person is, or in how they should exercise their powers, and what those powers should be. It can also be a relatively long process, which can add to the stresses and strains on family members.

How do you set up an LPA?

The simplest way of doing this is to make an appointment with a specialist solicitor. He or she will make sure you understand everything you need to, and they’ll complete the relevant forms with you. It can be useful to have someone experienced by your side who can help you clearly set out the scope of the LPA and any particular wishes you have, as well as to navigate some of the formalities (signature sections, for example) that can trip people up.

But you don’t have to use a lawyer. You could get in touch with the Office of the Public Guardian and ask for an application pack to be sent to you, or download the forms: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney). Alternatively, you could apply online via the government website (https://www.lastingpowerofattorney.service.gov.uk/home).

The next step is to register the LPA with the Office of the Public Guardian, and to send a specific form to those people you have opted to notify in it. They have a short period of time in which to object.

How much is an LPA?

You’ll need to pay a fee to register the LPA. This is currently £82, but you should check to see if you qualify for a reduction or exemption.

If you ask a lawyer to help you with the process, you will also need to pay their fees. At Barker Son & Isherwood LLP we offer a fixed fee arrangement. If you would like our assistance in creating Lasting Powers of Attorney, whether it be for solely for you, or for you and another person (such as a spouse or civil partner) then contact us on 01264 353411 and we will provide you with a competitive fixed fee quote.

Often individuals or couples wish to implement very similar, if not identical, LPAs in tandem with creating or updating their Wills. We can offer a fixed price package in those circumstances too.

Can an LPA be overridden?

If you have made an LPA and later decide that you don’t want it, then as long as you still have mental capacity, you will be able to revoke (cancel) it.

If you are a relative concerned that an attorney is not acting in your loved one’s best interests, you may want to take steps to have the LPA overturned. As the Office of the Public Guardian oversees the arrangements, that would be a good port of call. However, we’d advise speaking with a specialist solicitor first.

If my parent is sick, is it too late to get an LPA?

It depends. If your parent still has mental capacity, he or she will be able to put an LPA in place. If they no longer have mental capacity, then unfortunately it will be too late for that particular protection. However, all would not be lost. Assuming you would want to have some input into their future care and/or their financial affairs, you could apply to the Court of Protection to become their deputy. If successful, that would allow you to make decisions in your parent’s best interests.

My advice would be to get some professional medical advice on establishing whether your parent still has mental capacity and to take things step-by-step from there.

If you would like to speak to your local family law solicitor, why not check out our directory?