At Tyto Law, we want to make sure all of our clients have as much information as possible before they make important legal decisions. If you get into a position where you can no longer make decisions for yourself, or if you’re preparing for a day when that may happen, you may want to consider getting a power of attorney (otherwise known as an LPA – Lasting Power of Attorney).
Power of Attorney can be a financially sensible way of allowing people to make decisions on your behalf – it can be a lot cheaper in the long run and can make things easier for your family to plan ahead. We’ve answered some of your most commonly asked questions about Power of Attorney: from what it is, to why you would need one and how you would get one.
What is the Power of Attorney?
Power of Attorney is a legal document where a person (called the donor), gives another person the right to make decisions on their behalf. If you want someone to act on your behalf for financial or medical decisions, you would have to give them Power of Attorney over your affairs.
It’s a valuable way of preparing for the future by putting someone you trust in charge of your affairs. A Power of Attorney can only be set up while you still have the ability to weigh up information and make your own decisions – known as ‘mental capacity’ – which is why it’s so important to put it in place early on.
Are there different types of Power of Attorney?
There are different types of Power of Attorney. It is recommended that you set up both at the same time – usually when you are reviewing or writing your will so it can be part of the same process.
The two types of Power of Attorney are:
- A Property and Financial Affairs LPA – which gives your attorney the power to make decisions about your money and property. This includes managing your bank or building society accounts paying, paying bills, collecting a pension or benefits, or selling your home. Once it is registered, it can be used immediately or held until you lose ‘mental capacity’.
- A Health and Welfare LPA – which gives your attorney the power to make decisions about things like your daily routine (from washing and dressing to eating), your medical care, whether or not you need to move into a care home, or life-sustaining medical treatment. It can only be used once you are unable to make your own decisions, although you will need to agree to it while you still have capacity.
Why would I need an LPA?
Unfortunately, anyone is at risk of becoming unable to make decisions for themselves. Common illnesses like cancer or heart disease can leave us reliant on the people we trust to make decisions for us.
There are more than 800,000 people in the UK that have dementia, and every 90 seconds in the UK someone is admitted to hospital with a brain injury – with contact sports and traffic accidents being common examples of how people can get hurt. It’s not just the elderly that can benefit from an LPA, a lot of parents create them to make sure their children are looked after if anything happened to them.
How can I make an LPA?
In order to make a Lasting Power of Attorney, there are three steps that we will guide you through and manage:
- Choose your attorney – a person of trust (most commonly a family member). You can have more than one Attorney.
- Fill in the relevant forms and documents with us to appoint them as an attorney
- We will register your LPA with the Office of the Public Guardian (OPG) – a process that will take between 8 – 10 weeks.
How do I decide who to give the Power of Attorney to?
The legal criteria states that the attorney must be at least 18 years old, and must not be bankrupt. You can appoint just one attorney, or more than one attorney, to act:
- “Jointly” – meaning that they must always make decisions together
- “Jointly and Severally” – meaning that they have to make some decisions together and some individually
You also have the right to state that your attorneys must act jointly on all your affairs.
Can an LPA be changed?
You can change or cancel your Power of Attorney with our help at any time as long as you are deemed to have the mental capacity. You have to ask the Office of the Public Guardian (OPG) to change your lasting power of attorney (LPA) if it’s been registered.
You can also remove one of your attorneys by sending OPG a written statement called a ‘partial deed of revocation’. If you want to add another attorney you need to end your LPA and make a new one.
You can also cancel your lasting power of attorney at any time, even if the application has been registered. But you must tell your attorneys and the Office of the Public Guardian so they can remove the LPA from the register.
The Power of attorney automatically ends if:
- The attorney or donor dies
- The attorney or donor becomes bankrupt (depending on circumstances outlined below)
- A marriage or civil partnership between the donor and the attorney is dissolved or annulled
- The attorneys lack the mental capacity to make decisions
The Court of Protection can also cancel an LPA if they think an attorney isn’t acting in a person’s best interests, and is making excessive “gifts” to themselves or others.
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