Power of Attorney

Most of us will have had the unfortunate experience of seeing a friend or relative through a physical or mental illness. When this happens, it is often difficult for the family or those seeking to care for the individual to pay outstanding bills or deal with the person’s finances.

If this situation arises, then an application has to be made to become a "Deputy" to that individual, and will need to be sent to the Court of Protection under the Mental Health Act 2005.

The Court of Protection is the body which exists to protect the financial interests of those who are, by reason of mental disorder, no longer capable of looking after their own affairs.

This can all be avoided by drawing up a Lasting Power of Attorney (LPA). Before the person who is suffering, is unable to decide upon who should look after their affairs.

We recommend considering all the options when faced with the decision of making a Power of Attorney. It is worth taking the time to think about who you would feel comfortable with taking care of your finances, property and you if the worst should happen. Our solicitors offer impartial practical advice, and with a lot of experience in helping people faced with tough decisions such as these, we can make sure you get exactly what it best for you and your family.

What is a power of attorney?

A power of attorney is a legal document which allows you to nominate someone to make decision, and act on your behalf under circumstances where you are unable to make your own decision. This might be a temporary situation such as having to spend time in hospital, or a more long term situation such as the unfortunate case of loosing mental capacity.

What is mental capacity?

Mental capacity is the ability to fully understand and make your own decisions, and be aware of the outcome they will have.

Therefore if some has lost mental capacity, this means they cannot do at least one of the following:

• Understand information being provided to them reading a decision they need to make
• Remember the information long enough that they can make a decision
• Understand the options they have to choose from when making a decision
• Be able to clearly communicate the decision they have made

What types of power of attorney are available?

Ordinary power of attorney (POA)

This is suitable for covering decisions about financial affairs, whilst you still maintain mental capacity. This can be used for a temporary period, for example if you are in hospital or overseas; or if you struggle to get out and about. The power which you give to your attorney can be limited to only deal with certain assets, such as a bank account.

Lasting power of attorney (LPA)

This provides a legal authority to someone you trust to be able to make decisions on your behalf once mental capacity has been lost; or you no longer want to make your own decisions.

There are two different types of Lasting Power of Attorney, these are:

Property and Affairs LPA.

This allows the Attorney or Attorneys to make decisions on the person’s behalf about his or her property and affairs, including paying bills, collecting income and benefits or moving house. This type of LPA, does not allow for the Attorney to make any decisions about the welfare or care for the person. A Donor can appoint a Property and Affairs Attorney to manage their finances and property whilst they still have capacity as well as when they lack capacity.

Personal Welfare LPA.

This allows the Attorney or Attorneys to make decisions on the person’s behalf about their welfare, including giving consent for medical treatment and deciding where the person should live. These decisions can only be made if the person is incapable of making those decisions on their own, such as if suffering from onset dementia or mental illness. This Attorney does not have any power to decide what to do with the person’s property or financial affairs.

(Note: LPAs replaced Enduring power of attorney (EPA) in 2007. An EPA similar to a LPA and come into effect once mental capacity has been lost or when you want someone to act on your behalf. EPAs cover decisions regarding your property and finances. If you made and signed an EPA prior to October 1^st 2007, it should still be valid.)

Who should I make my attorney?

An attorney has a very responsible and important role to play, which involves a considerable amount of power. It is essential you trust the person/people you choose; they could be a family member, close friend, spouse or partner, or even a professional such as a solicitor. It is also recommended that you make sure the person/people you have chosen feel comfortable with taking on this responsibility.

It is worth taking the time to think about who you would feel comfortable with taking care of your finances, property and you if the worst should happen. Our solicitors offer impartial practical advice, and with a lot of experience in helping people faced with tough decisions such as these, we can make sure you get exactly what it best for you and your family.

Can I have more that one attorney?

It is often important to appoint more than one Power of Attorney, to ensure decisions that are within your best interests can be made as a group. These are known as ‘joint attorneys’, and you must decide how they make decisions regarding your affairs.

Jointly = they work together on all matter

Jointly and severally = they can act together or separately, as they choose

It is a good idea to detail which specific decisions they should act in either way. It is also worth considering appointing a replacement attorney, incuse one of your attorneys becomes unable to act on your behalf.

What if I don’t have a power of attorney?

If in the future you loose the ability to make or communicate your decisions, and you don’t have a valid lasting power of attorney (or enduring power of attorney) the Court of Protection will have to be involved. The Court can; decide if you have mental capacity to make your own decisions, make orders relating the decisions you can no longer make (health and care, property and finances), appoint a deputy to make decisions like an attorney would.

It is often assumed that if married or in a civil partnership, your spouse will automatically be able to make decisions on your behalf and deal with assets such as your finances, however this is not the case. If you have not made and named them in a valid lasting power of attorney, a Court of Protection application will need to be made; which we would be happy to help with.