What Is A Power Of Attorney And How Do You Set It Up?

What is an ordinary Power of Attorney?

"An ordinary power of attorney (OPA) is a legal document in which someone (the donor) gives another person (the attorney) the right to help them make decisions, or take decisions on their behalf. It can also be called a general power of attorney" (The Law Society)

The Law Society states that an OPA can be useful if the donor is finding it temporarily difficult to manage their affairs. It may be due to them being unwell, being out of the country or recovering from an injury. An OPA can only be used if the donor has mental capacity. According to the Law Society, there is no standard form to complete and it does not have to be registered with the Office of the Public Guardian. The donor can revoke the OPA by using a deed of revocation, or if the donor loses mental capacity.

What is a lasting Power of Attorney?

A lasting Power of Attorney is significant because it is ‘lasting’ even after the donor has become unable to mange their own affairs, whether temporarily or permanently. These were previously known as ‘enduring powers of attorney’.

"A Lasting Power of Attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’)." (GOV.UK)

"A power of attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you're no longer able to or if you no longer want to make your own decisions." (AgeUK)

How do you go about setting up a lasting Power of Attorney?

• Choose your attorney
• Fill out the forms to appoint them as an attorney
• Use a certificate provider to sign the forms
• Register your LPA with the Office of the Public Guardian (OPG)
• Pay a fee to register

When it comes to choosing an attorney (or attorneys) most people choose a family member or a professional person. There is no limit to how many power of attorneys you appoint. However, if you appoint more than one, you will need to decide how they will make decisions, either jointly or jointly and severally. Jointly will mean they have to agree to all decisions. Jointly and severally means they can either make decisions together or on their own.

The Office of the Public Guardian has the relevant forms and a helpful information pack. The forms can also be downloaded and filled out online. You can complete them yourself or with the aid of a solicitor or local advice agency. Seeking professional advice can be advantageous in the long run as the process can be complicated if your affairs are complex. A certificate provider must sign the LPA. They will confirm that you have fully understood the document and you have not been under pressure to sign it. You must know this person well and they must be a professional person such as a doctor, magistrate, social worker or solicitor. The LPA is then registered with the Office of Public Guardian.

How long does it take to process?

Typically, once you have submitted the forms, it takes eight to ten weeks to process the forms. If mistakes have been made, it will take longer.

How much does an LPA cost?

The compulsory fee for registering is £82 per LPA in England and Wales. This means £164 for the Property and Finance LPA and the Health and Welfare. In Scotland, it is £81 and £151 in Northern Ireland. If you have evidence that you earn less than £12,000 pa, this is reduced to £41. If you are on benefits, you may be exempt. This will be all you pay if you do it yourself. If you use a solicitor, you will have to factor in their fees.

Why do you need to register a Power of Attorney?

Many people confuse ‘having a will’ with ‘power of attorney’. The two are quite different as a will protects the interests of your beneficiaries after your death whereas your interests are protected by POA until you die. A lasting POA must be registered in order for it to be valid.

Risks of not having an LPA

If you haven’t granted powers of attorney to anyone and you lose your mental capacity and decisions have to be made, the court can appoint someone to be your deputy. Anyone over the age of eighteen can assume this role, providing nobody objects and they have the necessary financial skills. In the case of a one-off decision, the deputy can apply to the Court of Protection for an order to make that decision for you. It should be noted that a deputy’s powers are limited compared to someone who has been appointed as POA and it does incur an annual fee of up to £2,500 to renew their deputyship.

• You have no say in who the court appoints and the scope of power granted to them
• A deputy could be refused and so the council may be appointed instead
• Your family will have to pay extra to apply for and maintain a deputyship
• You may not be able to sell assets that are jointly held until a deputy is appointed by the court

Do you need a lawyer to make the arrangements, or can you do it yourself?

You can prepare a Lasting Power of Attorney yourself as the forms are available online. However, similar to your will, this is a very important legal document and you will want it to accurately convey your wishes. The court fee of £82 is applicable per LPA if you prepare the document yourself or use a solicitor. The forms do contain guidance to help you fill them out. If you are doing them online, there is an OPG helpline. Fees for using a solicitor vary, so you might want to compare the services they offer and their costs.

Use a solicitor who is a specialist in this field

The application form for POA is a lengthy document and there are different options within it. You can of course appoint more than one attorney, but be aware if they are asked to act ‘jointly’, they will have to agree before any action can be taken. Also, if one dies, the other/s will not be able to act and the LPA may be invalidated.

As described, it does take time for the OPG to accept the registration and LPAs can be rejected if signed incorrectly. This of course results in delays and the person making the LPA may be losing their mental capacity whilst all this is going on. With a solicitor, you also have an unbiased person who can assess whether the person making the LPA has the mental capacity to do so. It is certainly the cheaper option to do this yourself, but it may be a false economy if problems happen because the LPA was drafted incorrectly. CPJ Field can help you find solicitors in your area who are specialists in this area.

Overview of Lasting Power of Attorney

• When you make your LPA, you must be 18 or over and have mental capacity to make your own decisions
• You do not need to be a British citizen or live in the UK
• There are two types of LPA, Health and Welfare and Property and Financial Affairs (you can choose one or both)
• Scotland and Northern Ireland have a different process

Property and Financial Affairs LPA

This allows the attorney you have appointed to legally manage your property and finances if you become incapacitated. This can include managing your bank account. They can be used while the donor still has capacity unless the lasting POA specifies otherwise. Your attorney must keep accounts and ensure their money is separate to yours.

• Buying and selling a property
• Paying a mortgage and bills
• Investing money
• Arranging property repairs

Health and Welfare LPA

Here the appointed attorney can make personal welfare and medical treatment decisions including those relating to life-saving treatment.

• Where you live
• Medical care
• What you eat
• Types of social activities you participate in

Who you can have contact with

Sources of helpful information

If you have a close relative or friend who is no longer able to live independently and you need to think about how you can support them in decision-making about their care and end-of-life issues, we have written this booklet to help guide and support you

GOV.UK has a comprehensive page if you need to know more about choosing your attorney, making, registering and certifying a lasting power of attorney. There is also information about any changes that need to be reported, how you remove an attorney and how you end it. Other helpful sites include The Law Society, AgeUK, the Alzheimer’s Society, Citizens Advice and the National Health Service (NHS).

How can CPJ Field help you with power of attorney information?

Putting an LPA in place will provide peace of mind to you and your family. It ensures that your welfare and finances will be looked after if you become incapacitated. The last thing you want is a court-appointed deputy as you will have no say in who the court appoints, and it is an expensive option. Naturally, CPJ Field has a lot of experience and can refer you to local advisors to help with legal advice if required.