A Power of Attorney (POA) is a legal document in which a person gives another person (the Attorney) authority to make certain decisions on his or her behalf.
An Ordinary Power of Attorney is often used by people who are absent for one reason or another when a financial or property related transaction is being undertaken. For example, if you are overseas and selling property in the UK, you may appoint an Attorney who can be physically present to act on your behalf. These types of POA are generally used for individual transactions.
There are other types of POA known as Lasting Powers of Attorney (LPAs). These were introduced in 2007 and replaced Enduring Powers of Attorney (EPAs). Whilst there are slight differences, the principle is the same: they allow you to appoint someone to act on your behalf in a range of matters. The difference is that they can be put into action should you become mentally unable to make decisions yourself, for example through illness or injury.
There are two types of LPA:
- A Property and Affairs LPA. This allows your Attorney to deal with your property and finances in the event you become mentally incapacitated.
- A Health & Welfare LPA. This permits your Attorney to make health and welfare related decisions on your behalf. If you wish, this can extend to giving or refusing consent to life sustaining treatment.
Choosing an Attorney
As with any POA, you should choose your Attorney(s) carefully, ensuring they have the skills and competence to manage your affairs and that you can trust them. If you appoint more than one, they can act together or independently depending on your requirements, and you can appoint them to act together for some issues and separately for others. You may also choose a successor in case the first named Attorney cannot act for you for any reason.
An Attorney is only able to act when you and they have signed the LPA. The LPA will also need the signature of a ‘Certificate Provider’. Their role, amongst others, is to confirm you understand the scope of the LPA. The LPA must then be registered with the Office of the Public Guardian before it can be used.
Enduring Powers of Attorney
Enduring Powers of Attorney were the predecessors to LPAs. Any made before 1st October 2007 can only be used in respect of property and affairs. If you wish to give authority over health or welfare, you will need to make a Personal Welfare LPA.
What happens if you have not made an LPA or EPA?
If someone lacks the capacity to make decisions it may be necessary to make an application to the Court of Protection appointing a Deputy to make decisions on their behalf. Whilst the work of the Court of Protection must be applauded, the application process is much less straightforward than using an LPA.
For this reason, we always recommend making an LPA whilst you are able to. If you are making a will, it is a good time to talk to us about making an LPA. That way you can rest assured all your affairs will be in order and that everything will be much easier for your loved ones.
It is worth noting that an LPA can only be made whilst a person possesses full mental capacity, so we always say: don’t put it off ‘until the time comes’ because it will be too late.
We’re also on hand to advise if you’re feeling unsure about the suitability of an appointed Attorney, or if a dispute or objection relating to something covered by an LPA has arisen.