Helping you and your attorneys to manage your affairs
- 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.
It is important to choose attorneys wisely and trust them implicitly, particularly if they can make some decisions on their own. All attorneys of registered powers of attorney can be investigated by the Office of the Public Guardian at any time and issues regarding the conduct of the attorneys can be raised by solicitors, family, friends, social workers, etc. This adds a layer of protection for the individual.
There are several different types of power of attorney:
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
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
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.