Power of Attorney

Unfortunately, there may be times when you need someone to act on your behalf. Fortunately,  a trusted family member or friend who, as you choose, is granted legal authority to make decisions on your behalf. You may need to have this in place if you lack mental capacity in the future. Often people find it comforting to know that when they no longer wish or are able to make decisions for themselves, there is a nominated person who can do this for them.

LPA’s fall into two types:

1. for financial decisions
2. for health and care decisions

Not all Powers of Attorney are ‘Lasting’. There are several types of Power of Attorney in use, a General power of Attorney

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Financial LPA

LPA for financial decisions can be enacted when someone still has mental capacity. An attorney (the person who makes decisions for you) can generally make decisions on things such as:

• buying and selling property
• paying the mortgage
• investing money
• paying bills
• arranging repairs to property.

When setting up an LPA for financial decisions, your attorney must keep accounts and make sure their money is kept separate from your money. An LPA for financial decisions allows you to request regular details of how much is spent and how much income you have. This offers you an extra layer of protection. Nor do you have to give up all your decision making options when you set up and LPA. You can restrict or specify the types of decisions your attorney can make. Alternatively, you can allow them to make all decisions on your behalf.

Health and care decisions LPA

An LPA for healthcare as well as personal welfare and can only be used once a person has lost mental capacity. An attorney (the person who makes decisions for you) can generally make decisions about things such as:

• where you should live
• your medical care
• what you should eat
• who you should have contact with
• what kind of social activities you should take part in.

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When is a LPA valid?

In order for the LPA to be valid you must have the mental capacity to set it up and not been put under any pressure to create it.

Given the extensive power to make decisions about your life that the LPA grants, it really is important you are not pressured into signing and LPA. Your solicitor will be at great pains to ensure that you do wish to sign the LPA of your own free will.

As part of that checking process, the LPA has to be countersigned by a certificate provider who confirms that you understand it and haven’t been put under any pressure to sign it. They must be someone you know well or a professional person, such as a doctor, social worker or solicitor.

The LPA is then registered before it can be used.

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How to set up a lasting power of attorney

A solicitor or local advice agency can help you set up the LPA and register it.

You must register the LPA while you have the mental capacity to do so. The LPA can’t be used during the registration process which takes at least four weeks. If you lose mental capacity but signed the LPA while you still had mental capacity, the attorney can register it for you.

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More information

What is a Power of Attorney?

A Power of Attorney allows you to chose a person to act for you when you cannot or do not want to. You are called the Donor or more rarely grantor as you are giving the power to the Attorney. The Attorney then steps into your shoes and acts as if they were you.

They must always act in your best interests. As long as you have the mental capacity, you can revoke the power and end their right to act for you at any time.

How do you entrust a Power of Attorney?

It is not possible for an Attorney to apply to become your Attorney; you must actively give them the Power and the instruction to create a Power for someone to act as your Attorney can only come from you. You must both be over eighteen and both have capacity.

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What is capacity?

By capacity we mean mental not physical capacity and at its simplest it is the ability to make decisions for oneself. Generally speaking you should be able to understand the information and choices presented to you, weigh the information to determine how decision will affect you (and where relevant other people) and then be able to adequately communicate that decision. If you are unable to follow this process to make decisions, then you may be said to lack capacity.

The test is not absolute and the law recognises capacity can come and go or that it may be relative to the size, complexity and consequences of the decision being made. For instance you may be able to decide to pay a bill or install a chair lift, but not to cash in an endowment policy or sell your house.

The Mental Capacity Act 2009

Before the Mental Capacity Act 2009 you either had capacity or you did not and once you had lost it, it was gone forever. This rather Victorian view was consigned to the dustbin of history by The Mental Capacity Act, which sets out in Section 1 five principles that must be considered when dealing with the issue of capacity:

• A person is assumed to have capacity unless it is established that he lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

It should be obvious from the above that in theory at least the Donor should be actively engaged in decisions taken by the Attorney that affect him and the Attorney could be in difficulties if he does not consult with the door prior to making decisions for the Donor.

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General Powers of Attorney

The simplest one to give and use is called the General Power of Attorney. It is a short document that you sign in front of a witness that sets out what you want to Attorney to do. It can be as broad or as narrow as you like. For instance some are limited to selling a particular property while others give the Attorney unrestricted freedom to mange your finances from collecting your income to paying your debts.

The Power is only valid so long as you have capacity and is revoked either expressly by you or if you lose capacity.

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Lasting Powers of Attorney (LPAs)

The LPA was created by the Mental Capacity Act in part to reflect changing attitudes to incapacity and in part to bring to an end the flagrant abuses of vulnerable adults by the unregulated used of EPAs. The LPA introduces more safeguards for the Grantor in their creation and more supervision in their use than both the General and the Enduring Powers.

All this additional protection however has come at a considerable increase in cost both in professional fees and court fees as LPAs can only be created when the Donor has capacity and can only used once registered with the Court of Protection.

The forms are lengthy (albeit straightforward) to complete and the process takes about four months including notice periods given to potential objectors to the LPAs being given to a particular Attorney.

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LPA Attorneys

When you grant powers within an LPA you can nominate more than one Attorney. When the LPA stipulates two or more attorneys they can act jointly only or jointly and severally. You may also set very clear guidelines for how you want future decisions to be made, impose restrictions on the Attorneys’ authority and you can determine how they come to those decision (jointly and/or jointly or severally).

It is worth noting that if all decisions have to be taken jointly and one Attorney dies, the whole power fails as the surviving Attorney cannot make any decisions severally, and joint decisions are now impossible.

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