Planning for the future means coming to terms with the fact that you might, one day, lose the ability to make key decisions by yourself. It’s a difficult thing to think about, but you can make it easier by preparing for it. One key way to do this is to give someone you trust power of attorney.
So, what does ‘power of attorney’ mean, and how does it work? Let’s take a look.
What is a power of attorney?
A power of attorney is a document that grants someone the legal right to make important decisions for you. It can be used when you’re unwilling, or unable, to make those decisions yourself.
What does a power of attorney do?
Power of attorney gives someone the ability to take over your financial or medical decisions. This can be useful if you’re worried that you might lose the ability to take care of your money, property and healthcare in the future.
So, why might you need power of attorney? Here are a few typical examples:
- You can still make decisions about your finances, but are going to be housebound or away for a while (on a long hospital stay, for example)
- You’re still able to make decisions about your finances, but you’d prefer not to
- You have a mental illness or learning difficulties that might affect your decision-making at times
- You’ve been diagnosed with an illness that might one day affect your mind, like dementia or Alzheimer’s
What are the different types of power of attorney in the UK?
There are two main types of power of attorney: ordinary power of attorney and lasting power of attorney.
Ordinary power of attorney
Ordinary power of attorney gives someone else the ability to handle your finances while you have mental capacity (more on this below). It’s useful if, for example, you’re unable to talk to your bank in person, but can still tell someone else what you’d like them to do.
If you like, you can set limits on an ordinary power of attorney. For example, you can give your attorney the power to access a certain bank account, but not your pension.
Lasting power of attorney
Lasting power of attorney is a formal agreement that allows someone to make major decisions about you after you lose mental capacity. To make it valid, you need to register it with the Office of the Public Guardian. There are two kinds of lasting power of attorney:
- Property and financial affairs. Allows someone to manage your bank account, pay bills, collect benefits and pensions and sell your home on your behalf. This replaced enduring power of attorney in 2007.
- Health and wellbeing. Lets them make decisions about your healthcare, personal care, supported living arrangements and life-sustaining treatment.
- Whether you can understand what you’re being asked to decide on
- If you’re capable of understanding and processing all the information you need to make an informed decision
- Whether you can remember the information you’ve been given
- Whether you can ask questions and communicate your decision
You can't give someone power of attorney if you don't have mental capacity.
How much does power of attorney cost to set up?
Both of the different types of power of attorney need to be carefully worded to work as they should. For that reason, it’s often a good idea to get professional help. Solicitor’s fees can be up to £500. However, your local Citizen’s Advice Bureau should be able to offer free advice, and low cost templates are available online.
If you’re setting up a lasting power of attorney, you’ll also need to register it with the Office of the Public Guardian for an additional fee. Remember, there are two types of lasting power of attorney, financial and health. It costs £82 to register each, meaning you’ll pay a registration fee of £164 if you want to register both. Those on lower incomes or benefits may be able to get a discount.
How to apply for power of attorney
Ordinary power of attorney can be set up with the help of a solicitor. Once you’ve discussed the powers and limitations you’d like to grant, they’ll draft a document. You’ll then need to sign it with witnesses.
Applying for a lasting power of attorney is different:
- First, you need to fill out the appropriate forms from the Office of the Public Guardian. You may want to get someone from the Office of the Public Guardian to help. Or a solicitor, if you don’t mind paying a fee.
- Then, the LPA should be signed by you, your chosen attorney, witnesses and a certificate provider – usually your GP.
- Finally, you need to register the LPA with the Office of the Public Guardian. Even then, your attorney can only act on your behalf after you’ve lost mental capacity.
- Someone who has known you well for more than 2 years, or
- A professional who can attest to your mental capacity, such as a GP, solicitor, or social worker
The witnesses and the certificate providers should NOT be:
- Related to, or in a relationship with, your or your attorney
- Working for or in business with your or your attorney
- A manager, employee or owner of a care home you're staying in, or anyone related to them
- Your attorney, or someone who was your attorney in the past
- Anyone connected to a trust corporation appointed as an attorney in a financial decisions LPA
How do I choose an attorney?
Anyone aged 18 or over can be an attorney. The most important factor in choosing someone, however, is how much you trust them. Remember, this person could be making decisions about what happens to your medical treatment, your home, your money, and potentially life-or-death decisions about life support.
You can appoint more than one attorney. Most people give power of attorney to family members, close friends, spouses or partners. But, if you like, you can pay a professional instead.
How do you revoke power of attorney?
You can revoke an ordinary power of attorney using a document called a deed of revocation. This needs to be witnessed, and you’ll need to let your attorney know in writing. You should also alert any organisations your attorney has been working with on your behalf, like your bank. If you lose mental capacity or become bankrupt, the ordinary power of attorney is automatically cancelled.
It’s reasonably simple to revoke a lasting power of attorney if you still have mental capacity. You just need to return your original LPA to the Office of the Public Guardian with a deed of revocation. Again, you’ll need to let your attorney know. If you lack capacity and someone else is concerned about you, however, they will need to contact the Court of Protection.
Having issues with your attorney?
- If you feel unsafe, contact a local police station. If it’s an emergency, call 999.
- The Office of the Public Guardian oversees attorneys and can investigate them if they seem to be abusing their power.
- Action on Elder Abuse regularly help older people deal with issues to do with financial and physical abuse. You can call them on 080 8808 8141.