Powers Of Attorney

When someone makes a power of attorney, they appoint someone else to act on their behalf. The person making the power of attorney is called a donor and the person appointed to act on their behalf is called an attorney.

A power of attorney gives the attorney the legal authority to deal with third parties such as banks or the local council.

Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else such as where they should live or whether they should see a doctor.

In order to make a power of attorney, you must be capable of making decisions for yourself.

There are three main types of Power of Attorney – Ordinary Power of Attorney, Enduring Power of Attorney and a Lasting Power of Attorney.

Ordinary Power of Attorney

If you want someone to look after your financial affairs for a long period of time, you can give them an ordinary power of attorney. You might want to give someone an ordinary power of attorney if you have a physical illness or go abroad for a period of time. You should not use an Ordinary Power of Attorney if you have been diagnosed with, or are likely to develop, a mental illness.

You can give someone power of attorney to deal with all your financial affairs or only certain matters, for example, to operate a bank account, to buy and sell property or change investments. An ordinary power of attorney which only gives authority to deal with certain matters is also known as a limited power of attorney.  If you want to make a limited power of attorney you should make sure that it is drawn up very carefully so that the attorney is very clear about what authority they have to deal with your affairs.

There is a standard form of words to use if you want to grant an ordinary power of attorney. If you want to grant an ordinary power of attorney, you should contact a solicitor. It does not have to be registered and can be ended by destroying it.

Enduring Power of Attorney

Before 1 October 2007, it was possible to make an enduring power of attorney (EPA) to manage someone’s property or financial affairs. An EPA could be used before someone lost their mental capacity or after they lost their mental capacity once the EPA had been registered.

It is no longer possible to make a new EPA. However, if an EPA was made before 1 October 2007, it can still be registered and, if it is already registered, it will still be valid.

If you want to manage the affairs of someone who you think might lose their mental capacity and you don’t already have an EPA, a lasting power of attorney should be used.

Even if you already have an EPA, it can only be used to look after someone’s property and financial affairs, not their personal welfare. If you want power of attorney to look after someone’s personal welfare, you may be able to take out a personal welfare lasting power of attorney in addition to an existing EPA.

To continue using an EPA after someone has lost their mental capacity, the EPA must first be registered with the Office of the Public Guardian. The EPA must be registered by the person who will be managing someone else’s affairs (the attorney). Before you register the EPA, you must notify certain people that you are going to register it. This is done on a form which you must send to all the following people:

  • the person whose affairs you are going to manage (the donor)
  • any other attorneys if there are more than one
  • at least three of the donor’s nearest relatives.

Once you have given this notice, you can apply to register the EPA to the Office of the Public Guardian. There is a registration fee, although some people won’t have to pay it.

There are a number of ways to bring an EPA to an end. These include the donor cancelling it (as long as they still have mental capacity), with a court order, or by a decision by the Court of Protection.

Lasting Powers of Attorney

A Lasting Power of Attorney is the most common type that is used for helping older relatives.

It allows individuals to appoint a legally authorised person or persons to make decisions with regard to their health and welfare or financial and property affairs should they become incapable of doing so themselves at some point in the future. There are two types which can be done as one package or individually.

LPA – Property and Affairs

A Lasting Power of Attorney (LPA) – Property and Financial Affairs allows individuals to appoint a legally authorised person or persons to make decisions with regard to their property and financial affairs should they become incapable of doing so themselves at some point in the future. A Donor can appoint a Property and Financial Affairs Attorney to manage their finances and property while they still have capacity as well as when they lack capacity if they choose, e.g. where the Donor wants to give someone the power to carry out tasks such as paying bills or collecting benefits if they have difficulty getting around. It must be made while the Donor is of sound mind and can relate to any and all decisions about the Donor’s property and financial affairs or can be limited to specific powers.

An LPA – Property and Financial Affairs is registered with the Office of the Public Guardian.

You can choose as many Attorneys as you wish. A Property and Financial Affairs Attorney does not have the power to make decisions with regard to the Donor’s health and welfare unless the Attorney is also appointed as a Health and Welfare Attorney.

The LPA – Property and Financial Affairs document incorporates a certificate which must be signed by an independent person chosen by the Donor who must confirm that, in his/her opinion, the Donor is making the LPA of their own free will and that the Donor understands its purpose and the powers they are giving to the Attorney(s).

An LPA may be revoked using a Deed of Revocation at any time, either before or after registration, while the Donor still has mental capacity.

LPA – Health & Welfare

A Lasting Power of Attorney (LPA) – Health and Welfare allows individuals to appoint a legally authorised person or persons to make decisions with regard to their health and welfare, including whether to give or refuse consent to medical treatment, should they become incapable of doing so themselves at some point in the future. It must be made while the Donor is of sound mind and can relate to any decisions about the Donor’s healthcare and welfare, or can be limited to specific decisions. The Attorney(s) can only make decisions that are in the Donor’s best interests.

An LPA – Health and Welfare has to be registered with the Office of the Public Guardian.

You can choose as many Attorneys as you wish. A Health and Welfare Attorney does not have the power to make decisions with regard to the Donor’s property and financial affairs unless the Attorney is also appointed as a Property and Financial Affairs Attorney.

The LPA – Health and Welfare document incorporates a certificate which must be signed by an independent person chosen by the Donor who must confirm that, in his/her opinion, the Donor is making the Lasting Power of Attorney of their own free will and that the Donor understands its purpose and the powers they are giving to the Attorney(s).

An LPA may be revoked using a Deed of Revocation at any time, either before or after registration, while the Donor still has mental capacity.

Powers of Attorney are not regulated by the Financial Conduct Authority.

Should you have any queries regarding Powers of Attorney or you would like a referral to one of our trusted solicitors, then please do not hesitate to contact us on 01403 888490 or email us on info@aptus-care.co.uk.

Aptus Care is a trading style of Aptus Wealth Limited which is registered in England and Wales. Company Registration No. 8165763. Registered Office: 2nd Floor, 5 Glynde Place, Horsham, West Sussex RH12 1NZ. Authorised and regulated by the Financial Conduct Authority