It’s natural to feel overwhelmed when addressing the topic of Power of Attorney, even in precautionary circumstances. Sadly, people are often prompted to do so amidst an already pressured time usually involving a loved one’s deteriorating health. It’s far from the easiest of subjects however, should the worst happen to you or a loved one the situation will be far worse not having legally allocated a Power of Attorney in advance.
Why Power of Attorney is so important
You may not know that without Power of Attorney in place in the UK, a person’s loved ones cannot make medical or financial decisions on their behalf if they lose mental capacity. If someone suddenly loses mental capacity without a Power of Attorney in place, their loved ones would need to apply through the court to legally make a decision regarding their health or welfare, which can be a lengthy and expensive process. In short, it’s simply not something that should be ignored.
This guide will detail what Power of Attorney is, explaining the steps involved in making one, clarifying the differences to the processes depending on where you live in the UK and finally, answering key questions surrounding the matter that frequently arise to help you going forward.
The Lasting Power of Attorney document
A Lasting Power of Attorney (LPA) is a legal document where you can allocate one or more people (known as ‘attorneys’) the legal power to help you make decisions or conduct affairs on your behalf in the event that you become mentally incapacitated, normally due to an illness or accident. Your chosen advocate should only ever make a choice for you if you are unable to make that decision at the time it needs to be taken.
As a side note and to help those of you that may have seen out of date information online, last October (2017) Lasting Power of Attorney or LPA, replaced the previous Enduring Power of Attorney (EPA). EPAs set up prior to this change are still valid but will need to be registered when the person loses capacity.
Power of Attorney types
There are two types of Power of Attorney and the process is similar for both, they are however separate legal procedures with independent documents and so need addressing as such:
- Finance and property to decide any property and financial affairs on your behalf
- Health and welfare to decide any matters of welfare, be it medical or care on your behalf
If you are living in Scotland there is a third option of combining two, which is commonly done. Please see http://www.publicguardian-scotland.gov.uk for more details on this.
You can have one person who covers both welfare and financial matters or you can appoint different attorneys to each, either way these require separate forms. If you appoint a joint attorney it’s wise practice to also have a substitute in the event that your first choice for whatever reason cannot continue. Remember, your attorney needs to be somebody you trust be it a relative or friend, deciding who is the right person in your life to be accountable for these choices will require serious thought. Anybody over the age of 16 can be a power of attorney, providing that person is not currently deemed legally bankrupt.
Power of Attorney costs
Depending on where you live in the UK the costs to register a Power of Attorney differ slightly:
|England & Wales||£82|
This cost is per document, so for example, the finance and property Lasting Power of Attorney and also the health and welfare Lasting Power of Attorney together would cost £164 in total to register in England and Wales.
However, should you have a low income earning less than £12,000 per year, which you can prove, the registration fee is reduced significantly.
This cost of registration does not cover the setup of the documents. For help with the setup itself, a solicitor may be required and so paying a legal fee on top, however to ensure there are no mistakes and for peace of mind in terms of correctness it would be worth investing in this. Alternatively, you can opt to do the paperwork yourself, both options will be explained here shortly.
Required additional documents
In England and Wales when you make a Power of Attorney you require what’s known as a certificate provider to confirm you are capable of making this decision. This person cannot be a family member, it needs to be a person with the relevant professional skills (be it a doctor, lawyer or social work) or alternatively someone you have known for at least two years. If you live in Scotland, the law is a bit different in that the certificate provider must be either a solicitor (who is registered to practice law in Scotland) or alternatively a doctor and in Northern Ireland you do not need a certificate provider.
Creating the documents themselves
Moving onwards now to the process of creating the documents themselves, there are three basic steps to think about here:
- Decide if you’re going to do them yourself or hire a solicitor’s help.
- If you are doing things by yourself: decide if you would rather complete the relevant forms online or manually completing the forms. Both require signatures from yourself, your chosen Power of Attorney/s and certificate provider before being sent in the post.
- Register your Power of Attorney.
The very first decision to be made before beginning this process is whether or not to hire a solicitor. Doing the paperwork yourself will definitely save you some money, however, these documents need to be completed extremely thoroughly and exactly. If you wish to proceed with these yourself then we recommend getting advice from Citizens Advice as a solid starting point. If you are at all unsure or in any doubt a solicitor is the safest way forward by far.
If you are doing it yourself you can make an application via an online form, please note however, you’ll still be required to print some of the forms out to sign and send. You can of course download the forms and fill them in by hand . Your selected attorney/s and ‘certificate provider’ need to sign these documents also. Once completed by you or your solicitor they will be ready for legal registration, the completion of which usually takes approximately 8 weeks.
Here are some useful links if you wish to complete the documents yourself:
- Downloadable versions of forms to manually complete: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney
- Apply online: https://www.gov.uk/power-of-attorney/make-lasting-power
- For Scotland it differs slightly, please see: http://www.publicguardian-scotland.gov.uk
It may also be worth noting at this point a minor legal language difference: the person appointing someone as their attorney in England is described as the ‘donor’ whereas in Scotland it is the ‘granter’.
My loved one has lost capacity and does not have a Power of Attorney in place, what do I do now?
You will need to become that person’s deputy of the Court of Protection, this can be a lengthy process, please see these useful links as a solid starting point as below.
For England, Wales and Northern Ireland:
How can you challenge a Power of Attorney?
If it’s a case of wanting to reassign a Power of Attorney, so long as the person who assigned their Power of Attorney still has mental capacity, it’s a matter of them legally re-assigning with new documentation, for which you’ll need to seek legal advice.
I’m concerned about a misuse of attorney, what can I do?
In the event you feel there has been misconduct regarding the attorney or deputy of a loved one, the first formal step would be to contact the Office of Public Guardian, please see here for more details: https://www.gov.uk/report-concern-about-attorney-deputy
How long does it take to activate a Power of Attorney?
The legal forms and documentation once completed and signed by all needed parties is then sent away for legal registration in the post, which takes approximately eight weeks.
When does someone lack ‘mental capacity’?
When a person has the ability to make decisions, they can then be said to have mental capacity. When a person is not able to make a decision (be it a temporary or permanent condition) they can be said to lack the mental capacity to make a decision and therefore, require the help of trusted person in their life to help them come to decision, or make it on their behalf.
If you are unsure or concerned as to whether a loved one has mental capacity or not, and need further guidance please see: https://www.mentalhealth.org.uk/
For more of an underanding please see the following link which clearly explains ‘mental capacity’ along with the Mental Capacity Health Act: https://www.nhs.uk/conditions/social-care-and-support/mental-capacity/
Use link for those living in Scotland: http://www.mwcscot.org.uk/the-law/mental-health-act/
Useful link for those living in England, Wales and Northern Ireland:
What if my loved one still has mental capacity but clearly needs help managing money?
If for instance, it’s evident your ageing loved one is still fully capable of making decisions but requires help with life’s practicalities such as paying bills on time, you could pay their bills for them via direct debit or becoming an appointee.
How does Power of Attorney work after death?
It becomes invalid upon the death of individual who gave you the right to make decisions on their behalf. Unless you have been named in their will to take control of accounts, estate and so on, it is no longer your legal right nor concern.
How long does a Power of Attorney last?
Unless amended, it lasts the lifetime of the individual who assigned a Power of Attorney.
How do I legally stop being someone’s Power of Attorney?
You need to contact the solicitor or the firm that drew up the legal document you are currently on and inform them you wish to do a revocation.
In an emergency medical situation how do I get a Power of Attorney organised?
In a complete emergency you can apply to the Court of Protection, there is no fee for this emergency service. If you are granted permission through this process you may make a legal medical decision on your loved one’s behalf, please see this link for more details:
For England, Wales and Northern Ireland: https://www.gov.uk/emergency-court-of-protection
Though it is of course not a light topic of discussion it’s wise to address such matters so you and your loved ones can be well-equipped and best prepared for any event or circumstance, while in full health. Planning such aspects in advance will make it easier to cope and manage in challenging times should they arise. Please refer to the support and guidance section of our website for more help if you found this useful. If you feel you need guidance or want us to help you find care, please reach out to us. Our health care specialist Rosie will be more than happy to talk with you via our helpline on: 0845 050 3317 or email as preferred: firstname.lastname@example.org
We at Care Sourcer have gone to great lengths to ensure the accuracy of this information but please be advised we are not a legal authority on your personal situation, for this you will need to seek out the professional services of a solicitor. Throughout the UK the basic processes are similar but with key differences, which were highlighted for you here as we went along.