A power of attorney is a way of giving someone you trust the authority to make decisions on your behalf when you are no longer able to.
What is Power of Attorney?
Granting someone power of attorney means giving them the legal authority to make decisions on your behalf if you are unable to make them yourself.
In order to put in place power of attorney, you must be aged 18 or over and have mental capacity, i.e, you are able to make financial, property and medical decisions for yourself. By doing this, you are essentially putting provisions in place so that someone you trust is in charge of your affairs when you can no longer manage them yourself.
The person appointed to act on your behalf is called an attorney, and by giving power of attorney to them, you are the donor.
Ordinary Power of Attorney vs Lasting Power of Attorney
If a person can still make their own decisions but needs another person to make them on their behalf temporarily e.g, due to illness or during a holiday, they can use an ordinary power of attorney.
A lasting power of attorney however tends to come into effect when a person loses mental capacity, giving the attorney the right to manage their affairs on an ongoing basis.
Types of Lasting Power of Attorney
Lasting power of attorney (LPA) include health and welfare LPA and property and financial affairs LPA.
A health and welfare LPA gives your attorney the power to make decisions regarding your daily routine, medical care, moving into a care home, and life-sustaining medical treatment. This can only come into force if you are not able to make your own decisions.
A property and financial affairs LPA gives your attorney the power to make decisions about your money and property, such as managing your bank accounts, paying bills on your behalf, collecting your pension or benefits, and selling your home if necessary. Once this type of LPA is registered with the Office of the Public Guardian, it can be used immediately or can be held in preparation until it is required.
What is Mental Capacity?
If you lack mental capacity for a decision, you are unable to do one or more of the following:
- Understand information relating to the decision
- Weigh up that information
- Remember information long enough to make your decision
- Communicate your decision
Appointing Multiple Attorneys
Donors can appoint more than one attorney, to either act together as joint attorneys, or to act together and independently as joint and several attorneys.
Joint attorneys must always act together, meaning it is harder for them to commit fraud or go against the donor’s interests. However, if one of the joint attorneys dies or becomes mentally incapable, the whole power of attorney comes to an end.
With joint and several attorneys, the action or signature of one attorney is valid as a standalone. With this type of arrangement, the power of attorney continues in force if anything happens to one of the attorneys.
Being appointed as an attorney is a position of responsibility, as the donor has chosen you as someone they trust to act in their best interests. You can only do things the donor has authorised you to do and cannot ask others to carry out your duties unless the donor authorised this.
For more information on making, registering or ending a lasting power of attorney, click here.