Powers of Attorney are legal documents which allow a person (the Donor) to appoint someone (the Attorney) to assist with decision making during their lifetime. The Power of Attorney will end at different times depending on the type of Power of Attorney granted and all Powers of Attorney require the Donor to have sufficient mental capacity in order to be able to make one.
A General Power of Attorney is usually a short term document allowing an Attorney to assist the Donor with their financial affairs for around 12 months and then most financial institutions will require a new document to be signed. The document will also cease to be effective if the Donor loses mental capacity. These types of document are usually used for convenience for example, the Donor has gone abroad and needs someone to sign on their behalf in their temporary absence.
Enduring Powers of Attorney (EPAs) can no longer be made and were replaced by Lasting Powers of Attorney (LPAs) on 1st October 2007 however for those who made EPAs, they can still be used. EPAs cover decision making for property and financial affairs and the EPA would last until the death of the Donor. EPAs can be used straight away without registration but must be registered when the Attorney has reason to believe that the Donor is losing mental capacity to deal with their own financial affairs on a day to day basis. An EPA can be used for convenience for example if the Donor was unable to sign but still had mental capacity or out of necessity when the Donor is losing or has lost mental capacity.
LPAs are the most current form of Power of Attorney. They are split into two documents, one dealing with financial decisions and the other dealing with health decisions. Donors can choose to make either or both documents and can have different people acting in each role. LPAs must be registered before they can be used but again, the financial document can be made out of convenience or necessity whilst the health LPA can only be used if the Donor cannot make decisions themselves. The decisions for health can extend to making decisions about life sustaining treatment. To some extent, this document can replace “Living Wills”, “Advanced Directives” or “Advanced Decisions”. The health LPA should be lodge with the Donor’s doctor and placed on their medical file.
How do you get Power of Attorney?
If you are assisting someone with their financial affairs, you cannot “get one” on behalf of that individual. The person must make one and appoint you as their Attorney hence the term Donor.
A section of the LPA also requires an independent person who has known the Donor for at least two years to sign off the LPA confirm the following:
- The Donor understand the purpose of the LPA and the authority given by it
- There is no fraud or undue pressure being used to induce the Donor to make the LPA
- There is nothing else which could prevent the LPA being made
Powers of Attorney can be made with or without the assistance of a legal professional however, in the event of a dispute over the validity of the document or a query over the Donor’s capacity, it would be better to use a solicitor who can guide the Donor through the process, advise on the options available and document the relevant legal issues in the event that evidence is required in court at a later date. When choosing a solicitor, a Donor should choose one with at least 2 of the following and preferably all 3:
- a specialist in Wills and Probate;
- a STEP qualified solicitor – The Society of Trust and Estate Practitioners is the worldwide professional association and an additional qualification for practitioners dealing with family inheritance and succession planning (the Society helps to improve public understanding of the issues families face in this area and promotes education and high professional standards among its members);
- a fully accredited member of SFE – Solicitors For the Elderly is an independent, national organisation of lawyers, who provide specialist legal advice for older and vulnerable people, their families and carers and essential for those who have boarder line mental capacity.
What happens if I don’t make a Power of Attorney and lose mental capacity?
If a person loses mental capacity and does not have a valid Power of Attorney in place, their family will not be able to access their finances. They would then have to apply for what is called a Deputyship. A Deputyship is similar to the role of the Attorney but the appointment will need to be made by the Court of Protection. This means that they will need full disclosure of the person’s finances to include, income, expenditure and current assets. They will also need to complete checks on the intended Deputy. The Court of Protection will also usually only appoint one Deputy whereas in a Power of Attorney, more than one can be appointed and in different a variety of ways to suit the Donor.
In terms of costs and the time it takes to apply for a Deputyship, it can take 2-3 times longer and cost 2-3 time more than making a Power of Attorney.
If you would like more information regarding powers of attorney and how we can assist, you can find more information here. Alternatively you can call us on 0161 941 4000 or you can use the enquiry form found on the right of this page.
How We Can Help
A member of our specialist team will be happy to help.
To discuss What is a Power of Attorney and the different types of Powers of Attorney? issues, please either use the contact form on the right, email us at firstname.lastname@example.org or call us today on +44(0)161 941 4000 to speak to a member of our team.