A power of attorney is a document that is drawn up when you (the "Donor") appoint someone (the "Attorney") to handle your affairs when you are unable to do so yourself. It is a way of being sure that the attorney you entrust to be in charge of all your affairs—ranging from paying bills to managing bank accounts—is formally appointed.
If you are no longer in control of your life, no one automatically has the right to take your debit card and withdraw money from your bank account. If you receive a pension, no one has the right to access it. Likewise, if you are incapacitated in some way, no one is automatically given the right to make decisions about your health and future care. This is where an LPA comes into the picture, as once you have appointed an attorney the burden is no longer on your shoulders. When LPAs came into force in 2007 it became the donor's choice, either automatically or when he or she lost capacity.
You can appoint one attorney for financial decisions and another for healthcare decisions and your care possibilities. When you create an LPA, you decide when your attorney will begin to act on your behalf. This can either be before or after you have lost the capacity to make your own decisions.
Your attorney is given the responsibility of making decisions for you. These include:
When your attorney starts to make financial decisions on your behalf, accounts have to be kept of any ingoing and outgoing cash. Your attorney is required to keep your money separate from his or her own. If you are able, you may request proof from your attorney of any money that has been spent. To be certain that your attorney is acting honestly with your money, when you create your LPA you can request that any transactions or other decisions made in your interest are shared with your attorney or, if you choose, another member of your family.
Your attorney can make decisions about your health and care when you have lost your mental capacity to do so. There are some decisions you have to agree to before any action can be taken. These may include:
An important point to note, and one which should be conveyed to your attorney, is that any action taken on your behalf should also be shared with any of your family, friends and care professionals or medical staff who are assisting with your needs.
Once the LPA has been drawn up, the attorney may have the following financial rights and responsibilities:
Because abuse of LPAs sometimes occurs, there are safeguards put in place to prevent this from happening. One of these safeguards is the signing of the LPA by an independent individual who is able to confirm that the donor is making the LPA. This person is called the certificate provider and confirms that:
One type of certificate provider is called a ‘knowledge-based provider’, who has known the donor for at least two years. The second type is the 'skill-based provider', who possesses relevant expertise and professional skills, such as a professional healthcare worker like a GP or a registered social worker, a solicitor or barrister.
A certificate provider cannot be:
Once your lasting power of attorney form has been completed and signed by you, a number of other people will need to sign as well, including your attorney, any replacement attorney(s), your witnesses and the certificate provider. You should not delay this process as you never know when you are going to lose the capacity to manage your affairs. Registering your LPA could take up to 10 weeks; before this process is completed, your LPA is not legal.
All signatures on an LPA form, and the date of the signatures, have to be witnessed. In theory, an attorney's signature could be witnessed by any other attorney. However, because of the possibility of undue influence taking place if attorneys act as witnesses for one another, it is preferable to use third parties who are completely unrelated to you, like friends or neighbours, to act as witnesses.
Witnesses must meet the following requirements:
There is also an order to the signing:
If you decide to appoint two attorneys as well as two replacement attorneys, this means that at least seven people are needed to sign altogether. Therefore, a suitable date should be set for this part of the LPA process. If it is simply impossible to gather all the attorneys and replacement attorneys in one place at the same time, then they can permit to sign at a different time as long as there is somebody available to witness this.
The first thing to do is to think carefully about who you are going to appoint as your attorney, especially if your personal affairs are not that straightforward and you want to make sure that the responsibilities you are passing on to your attorney are appropriate for that person.
The second step involves completing the relevant forms. Once this has been done, the forms should be witnessed and signed by the donor, all attorneys and any replacement attorneys. Additionally, the certificate provider needs to sign (this is the professional or known person that confirms capacity).
Once all the documents have been completed, the LPA cannot be legally used until the appointment has been registered at the Office of the Public Guardian. This attracts a fee—currently £82 (as of 2018)—but if your income is low you may be eligible to receive a discount of 50%. If you do not earn anything except benefits, registering your LPA will not cost anything at all. The registration takes about nine weeks to complete and throughout this period you are permitted to use your LPA. If you lose your mental capacity after the signing but before the registration has been completed, your solicitor can complete the registration process on your behalf.
In 2007, changes to rules regarding powers of attorney were made, including the appointment of a replacement attorney. A replacement attorney is an individual who is named by the donor in the LPA as a substitute for an already appointed attorney. This replacement attorney steps in if the first attorney either does not wish to continue in the role or is not capable of doing so.
A replacement attorney could step in if the first attorney:
The replacement attorney may begin making decisions once the first attorney has stopped acting. The Office of the Public Guardian needs to be informed immediately in order to keep the records straight.
Your attorney can claim any of the following expenses as required:
These expenses can be taken out of your money. Your attorney must keep an account of these expenses, including any receipts that have been issued.
Your attorney cannot claim for time taken on attorney duties unless you have chosen a solicitor to take on this responsibility who will charge you fees for the service.
An LPA is only considered to be valid if at the time of setting it up you had the capacity to complete the process and no one has put any pressure on you to appoint an attorney. The decision is yours and no one else's. The person you choose to be your attorney must be somebody you trust entirely to make the right decisions concerning your affairs that you no longer have the capacity to do yourself. There is a space on the form where you indicate whether the attorney should begin making financial decisions on your behalf before or after you have the lost the capacity to do so yourself. When it comes to your health and care associated with it, your appointed attorney cannot make any decisions until you have lost the capacity to do so yourself.
If you change your mind about the person you have chosen to be your attorney, you can at any time change your attorney as long as you have the mental ability to do so. LPAs, as they stand today, were introduced in 2007as replacements for enduring powers of attorney (EPA). If you formalised your EPA before October 2007, it could still be valid.
One’s mental capacity is not fixed. When you have the mental capacity to do something it means you have the ability to make any types of decisions at any given time. You must be able to understand any decisions you have made and why you made any particular decision.
You also need to be aware of any outcome of a decision you have made. The ability to make a sound decision may vary, which means that you may not have the capacity to make a decision one day but you are perfectly able to the next day. Also, some people have the capability to make decisions about some aspects of their life, but not others. Generally speaking, somebody with mental capacity should have the ability to communicate effectively through gestures, speech and signs, or any other means that convey that he or she has the mental capacity to do so.
If you have the misfortune to be diagnosed with dementia, that does not mean you no longer have the mental capacity to make decisions yourself immediately. It is important that if you are having any difficulties, someone should help you to overcome the difficulties first and before a decision is made on your behalf.
There are a couple of points that need to be considered before it is finally decided you have lost your capacity to make decisions. The first is that the person making the decision must have made an assessment deciding that you no longer have the capacity to make your own decisions. The second is that any decisions made on your behalf are done in your best interests first.
An ordinary power of attorney is established if you wish to give somebody else the power to make any decisions concerning your finances, even if your mental capacity is still intact. This can in fact only be used if you still have the mental capacity to make your own decisions about your finances.
An ordinary power of attorney is normally used in certain circumstances, such as:
It is possible for you to limit the power you give to your attorney so they are only permitted to handle certain specified assets of yours, like just your bank account.
If you think it is important to set up an ordinary power of attorney, a solicitor can advise you on the procedure. This is because certain standardised wording needs to be used. The person you choose to be your attorney could be a friend, family member, your spouse, partner or civil partner. However, you can also choose a solicitor if you prefer. The person you choose must be over 18 years of age and should not normally be a care worker paid by you. You may select two people to act as your attorneys if you wish, but you will need to decide if they have to act together (jointly) or can also make decisions on their own (jointly and severally). Sometimes, people may select a replacement attorney in the event that the first one is unable to carry out the job for one reason or another.
When somebody is acting on your behalf as your attorney, he or she needs to understand and abide by certain principles. This means supporting you as much as possible to arrive at your own decisions, and if this is not possible, make decisions that are in your best interests.
Before making any decisions for you, the attorney must consider how you are likely to respond to the decision and whether you would agree with it. He or she should also discuss any potential decisions with relevant friends and family before making them. Your privacy should also be upheld, meaning that your attorney should not release details about you and about any decisions that have been made if they are likely to affect your privacy.