Powers of attorney

What is power of attorney?

A power of attorney gives someone (the donee) legal authority to act on an individual’s behalf (the donor) and make decisions for them. Powers of attorney can be created as long as the individual has mental capacity to do so and is over 18. This applies to anyone who is to be appointed attorney too.

Attorneys can act jointly (which means decisions can only be made with the agreement of all named attorneys), jointly and severally (when attorneys can make decisions independently of each other), or a mixture of both.

How to get power of attorney?

The process with which power of attorney is assigned can be a lengthy, complicate process depending on the type of attorney you are seeking. If you are trying to approve Lasting Power of Attorney (LPA), then you must submit an application and register your LPA to the Office of the Public Guardian. This can take up to 20 weeks and will also require a fee of £82.

However, if you are seeking General Power of Attorney the process is much quicker and nothing has to be submitted to the Office of the Public Guardian.

Who can override a power of attorney?

If you are the individual in question who appointed the LPA, then you can override it and appoint a new person as long as you have mental capacity to make decisions. You may want to do this because the relationship has fallen apart, the LPA has lost mental capacity, they have divorced, or have been declared bankrupt, amongst other reasons. However, an LPA can also apply for another LPA to be removed if they do not believe they are right for the role.

Who can witness a power of attorney?

A power of attorney can be witnessed by anyone as long as they are over the age of 18 and are not a doner. If there is more than one LPA, then they can be used as witnesses for each other. In some cases, the individual issuing the certificate can also be witness for the attorneys and/or doner.

What are the different types of power of attorney?

Depending on you or your loved one’s unique situation and how severely they have been affected by mental incapacity, there will be a number of different ways that Power of Attorney has to be applied. This includes:

1. Enduring Power of Attorney

(which can no longer be created after 30 September 2007)

Properly created Enduring Powers of Attorney created on or before 30 September 2007 remain valid but only cover decisions relating to an individual’s property and financial affairs, please see below as to what this allows:
Enduring powers of attorney can be used without being registered, while the individual still has mental capacity. There is a duty to register the document with the Office of the Public Guardian if the individual is, or is becoming, mentally incapable. It can take up to 4 months to register.

2. Lasting Power of Attorney

These can give authority to cover one or both of the below specific areas of decision making on behalf of the donor once they lack the capacity to do so themselves.

a) Property and finance
b) Health and welfare

Property and finance LPA

Enduring powers of attorney and Lasting powers of attorney for property and finance give the appointed attorneys authority to make decisions in relation to:

• Bank or building society accounts
• Selling or purchasing property
• Existing or new investments
• Government benefits
• Paying bills
• Any other financial matters that may arise

Health and Welfare LPA

Lasting Powers of Attorney, health and welfare give the appointed attorneys authority to make decisions in relation to:

• End of life Treatment
• Where the individual lives
• Who is permitted to visit the donor
• The type and level of care they should be receiving
• Any other decisions that need to be made relating to the donor’s health or welfare

Lasting powers of attorney cannot be used unless they are registered with the Office of the Public Guardian first. Once registered, a property and finance LPA can be used whether or not the individual has capacity. If the individual has capacity it can only be used with their consent and under their direction.

Health and welfare LPAs cannot be used unless the individual is mentally incapable of making the decision themselves at that time.

3. General Power of Attorney

General powers of attorney do not need to be registered at the Office of the Public Guardian and can be used as soon as they are signed. They are valid for 12 months and only while the individual has capacity.

They can be useful in situations where the individual is incapacitated for a short period, for example if they become housebound or are going away for a while. After 12 months there is a need to provide further information. If the individual loses mental capacity then this type of power of attorney becomes invalid immediately and can no longer be used.

At Moore Barlow, we can help donors with the creation of powers of attorney. We also offer expert guidance and specialist support to attorneys and if needed, we can be instructed to provide further services which help with the administration of the attorneyship.

Do you need a power of attorney?

Technically, you do not legally have to appoint a power of attorney and can leave it up to the Court of Protection to appoint a deputy. However, it is advisable that you do so that you have greater control over who will be looking after your finances, affairs, and wellbeing whilst you cannot.

Why choose Moore Barlow?

We have built a reputation providing our clients with the best legal advice and support, making sure that we understand their unique situation so we can give them what they need. Our bespoke legal service and talented legal team, mean our clients have access to a wealth of resources and specialist knowledge. At Moore Barlow, we’ll always be there, knowing that this may well be a particularly difficult time in your life.