It is possible to nominate someone to have the legal authority to make decisions on your behalf, should you ever lose the capacity to do so yourself, via a Power of Attorney. It is a relatively inexpensive and simple process to do so. In this article, we will explain what a Power of Attorney does, why you need it and how to arrange it.
What is a Power of Attorney?
A power of attorney is a legal document that allows you, the donor, to appoint people, the attorneys, to make medical and/or financial decisions on your behalf if you become mentally incapacitated to do so. The power of attorney can assign permissions to your attorney to cover decisions about your health and care as well as your finances. This is done through two types of power of attorney - a 'Property and Finance Power of Attorney' and a 'Health and care Power of Attorney'.
An attorney, once nominated and registered through this process, can usually liaise with health and care professionals on behalf of the donor. They could also access their bank accounts and other financial products to make financial transactions for them where needed.
Attorneys are limited to assuming their powers only in cases where the donor has lost the mental capacity to act for themselves - we describe these powers further in this article. Activating the powers requires a witness to support the fact that the donor no longer has mental capacity.
What is a Power of Attorney for health and care decisions?
A health and care power of attorney is limited to making decisions about your health, care and daily living which can include matters such as:
- Where you live
- Who takes care of you
- What you eat
- What activities you do
- The care you receive
What is a Power of Attorney for financial decisions?
A financial power of attorney would give the attorney the ability to carry out financial transactions and they could make financial decisions and act on your behalf including:
- Sale or purchase of a property
- Paying bills
- Managing investments
- Arranging repairs to property
What is a Lasting Power of Attorney?
A lasting Power of Attorney is one that has no end date so it is an instruction of permission from the donor for the attorney to make decisions on their behalf for the foreseeable future. Of course, the donor can make changes to this if they are of sound mental capacity. Enduring power of attorneys are similar except they are not registered until the donor loses mental capacity whereas lasting power of attorney is registered beforehand. Enduring power of attorneys were replaced with lasting power of attorneys from October 2007.
How does a Power of Attorney work?
A Power of Attorney essentially acts as a certificate for the person(s) you choose to be attorneys to use if it becomes necessary to make decisions for you. They may need to present the certificate to medical staff, your bank or any other organisation they are dealing with on your behalf.
How to arrange a Power of Attorney
The Office of The Public Guardian facilitates the registration of a Power of Attorney. You can visit the government website section called "Make, register or end a lasting power of attorney" where you can either download the forms that are needed to do this or you can simply follow the links within the site to complete them online instead. The site provides step-by-step instructions on how to arrange your power of attorney.
The registration process takes around 20 weeks and can take longer if there are any mistakes. You will also have to notify the 'people to be told' listed on your power of attorney so that they have time to raise concerns if they need to.
How much does Power of Attorney cost?
Creating a Power of Attorney costs nothing but in order for it to be used, it must be registered with The Office of Public Guardian and this costs £82.
Power of Attorney - summary of charges
|Arrange one power of attorney (financial or health)||£82.00|
|Arrange both power of attorneys (financial and health)||£164.00|
|Make a change within 3 months of registering or A repeat application||£41.00|
|Certified copy of a power of attorney||£35.00|
If you are in receipt of certain state benefits then you may qualify for a reduction or an exemption to the cost of creating a power of attorney. You can find more specific information regarding reductions and exemptions in the Office of the Public Guardian LPA and EPA fees document.
How much does a solicitor charge for Power of Attorney?
It can be helpful to use a solicitor to create and register a Power of Attorney but there may be extra costs involved with doing so. The costs for arranging your Power of Attorney with a solicitor will vary widely from one solicitor to the next but this could add anywhere between £50 and £500 (sometimes, even more) to the registration fee which is £82 for a single power of attorney.
Who can override Power of Attorney?
Anyone can object to the registration of a Power of Attorney but this would have to be done through the Office of the Public Guardian (OPG) and/or the Court of Protection. An objection can usually be made if the person objecting believes the:
- donor lacked mental capacity when arranging the power of attorney
- attorney lacks mental capacity to carry out their responsibilities
- donor has regained mental capacity
- attorney is unfit due to bankruptcy or is under a debt relief order
Cases, where fraud is suspected, can also be raised with the OPG.
What is mental capacity?
Mental capacity is the ability to make decisions about, amongst other things, financial and personal matters. Although a lack of mental capacity requires a person to demonstrate an inability to make decisions, it is important to note that it is not defined by someone’s need to take extra time to make such decisions. For example, if a person with dementia is unable to make decisions quickly but, given time, is able to do so, they usually would not demonstrate a lack of mental capacity.
How is mental capacity assessed?
Mental capacity is assessed using the guidance contained within the Mental Capacity Act (MCA) which outlines a number of criteria that fulfil the requirements for a person to be deemed to present with a lack of mental capacity to make decisions.
Who decides if someone lacks mental capacity?
The person who would carry out an assessment of mental capacity should have access to the Mental Capacity Act and would be referred to as an Assessor.
Assessors can be anyone – for example, family members, a care worker, a care service manager, a nurse, a doctor or a social worker. It is the responsibility of everyone who makes decisions on behalf of others to recognise their role and responsibilities under the code of practice.
The MCA outlines that a person is unable to make a decision if they are unable:
- to understand the information relevant to the decision
- to retain that information
- to use or weigh that information as part of the process of making the decision
- to communicate their decision (whether by talking, using sign language or any other means)
Who should arrange a Power of Attorney?
Anyone can and should consider arranging a Power of Attorney to ensure that the person acting for them is someone they selected.
It is not unusual for people to arrange Power of Attorney for an interim period while they are unable to manage their affairs - they may be taking a long holiday, be unwell or simply require someone else to step in for them for other reasons.
How do I prove I have Power of Attorney?
The simplest way to prove that you have Power of Attorney is to present a certified copy of the Lasting Power of Attorney - the donor can carry out certification if they have the mental capacity or a solicitor can do it. Still, the latter will usually charge a fee for this service. Most organisations that are presented with a Power of Attorney will ask for proof that the attorney has been appointed.
Can a Power of Attorney transfer money to themselves?
Yes, attorneys are able to transfer money to themselves but there are rules that prevent them from doing so unless the transfer is in the best interests of the donor and maintains their ability to afford ongoing care and other needs. Attorneys are required to keep records of financial transfers which can be checked by the Office of the Public Guardian as well as the Court of Protection.
Can a Power of Attorney change a Will?
It is possible for an attorney to change a will but they would have to apply to the Court of Protection with a body of evidence to support either changing an existing will or creating one where one was not in place. However, ultimately any change or creation of a Will can only be done if the donor does not have the mental capacity to do so and must be in the interests of the donor.
Do I need probate if I have power of attorney?
Usually, a power of attorney ends if the donor dies so in practical terms the assets and belongings of the deceased donor including any assets under a power of attorney would become part of the deceased's estate. The executors of the estate can be the same as the attorneys if the donor nominated the same people in which case they would act for the estate at this point.
- You can only arrange a power of attorney while you are of sound mental capacity
- Power of attorneys can be lasting or for short periods of time while they are needed
- Registration of a power of attorney costs £82 for each type - 'Financial' & 'Health and welfare'