Power of Attorney

Power of Attorney grants a person the authority to act on another’s behalf regarding either their Personal Welfare, or Property and Financial Affairs or both together in the event that they are rendered incapable of caring for their own welfare.

Enduring Power of Attorney

In 2007 the regulations governing Power of Attorney changed, creating the Lasting Power of Attorney to replace the Enduring Power of Attorney. Any existing Enduring PoA’s are still valid, though must still be registered with the Office of Public Guardian to be effective.

Lasting Power of Attorney

Lasting Powers of Attorney differ from Enduring PoA’s in that they can be registered before the donor has lost the capacity to act on their own behalf and so prevents any delay in maintaining their welfare.

There are two types of Lasting PoA:

Property and Financial Affairs

  • Buying and selling property
  • Control over bank, building society and saving accounts
  • Welfare benefits and tax credits
  • Tax affairs
  • Debts
  • Legal proceedings

Health and Wellbeing

  • Where the donor lives
  • Day-to-day care, what to wear, what to eat
  • Healthcare treatment
  • Contact with other people
  • Access to personal information and data

Creating a Lasting Power of Attorney

A Lasting PoA can be created at any time for someone over the age of 18. This must then be registered with the Office of Public Guardian before becoming effective. When considering a Lasting Power of Attorney the following should be considered:

Property and Financial Affairs

  • Who should be an attorney
  • Who should be a replacement attorney
  • How the attorneys can act (individually make decisions, or require agreement between them)
  • Any other restrictions or conditions the attorney should abide by
  • Whether the attorney’s should be paid or not

Personal Welfare

  • Who should be an attorney
  • Who should be a replacement attorney
  • How the attorneys can act (individually make decisions, or require agreement between them)
  • Any other restrictions or conditions the attorney should abide by
  • Whether the attorney’s should be paid or not
  • Whether the attorney should have the power to give or refuse consent for life sustaining treatment on your behalf.

When making a Lasting Power of Attorney it is vital that the donor be of sound mind and be able to give informed consent. If that is not possible due to illness or frailty then an application must be made to the Court of Protection, a lengthy and costly process. Therefore it is important to prepare and establish a Lasting PoA sooner rather then later.

The Attorney

Any person that is over the age of 18 and capable of making decisions can be an attorney.

Bankruptcy will normally prevent someone from being an attorney, and any attorney that becomes bankrupt will have the power taken away.

Solicitors and some banks can act as attorneys, though they will charges fees for professional services. Friends and relatives that act as attorneys can be paid, if the donor wishes them to be, but can always claim back out of pocket expenses incurred in managing the donors affairs.

More then one person can be an attorney, and they can be instructed to act individually or to require agreement between them. A donor can also specify other replacement attorneys to take over if another attorney dies or refuses to act or is prevented from acting.

An attorney has a duty to always act in the best interests of the donor. They must only ever act in a way authorized by the donor, and cannot normally ask anyone else to act for you. When signing the attorney should sign their own name, and then add ‘Attorney for …’ afterwards.

Cancelling a Lasting PoA

A power of attorney can be canelled at any time by the donor, providing the still have the mental capacity to make the decision. Otherwise, when the last attorney stops acting as an attorney the PoA is cancelled. In this case the must notify the Office of the Public Guardian and the donor, no matter their mental state.