The importance of power of attorney (PoA)

When planning for the later years of life it is important that you put the right plans in place to protect your estate and your loved ones.  Power of Attorney is an important legal document that gives someone you trust the authority to make decisions or take actions on your behalf if you are unable to do so.   However, there are different types of power of attorney relevant to different circumstances. 

Here we make sense of the different types of Power of Attorney and how they can be used.

A Power of Attorney gives legal power to one or more people you trust – these people will be classed as your ‘attorneys’.  This may happen if you have temporarily been in hospital, you have become unwell and can no longer make decisions for yourself, for example if you are living with a condition like dementia, or following a stroke.

Mental capacity

When considering a Power of Attorney you need to think about what decisions may need to be made on your behalf, and if you wish for your attorney to act whilst you still have mental capacity or only if your mental capacity has begun to reduce.  Having mental capacity means you can make and communicate decisions as and when they need to be made.  Mental capacity is described in more detail on the NHS website.

In the UK there are three different types of Power of Attorney:

General Power of Attorney

Applicable whilst you still have mental capacity. This type of attorney gives your chosen attorney the authority to make decisions and take actions regarding your finances.

Lasting Power of Attorney 

There are two types of Lasting Power of Attorney; the first relates to property and financial affairs and the second to health and welfare.  The former enables your attorney to make decisions about your finances either with your permission or if you lose mental capacity.  The second; enables the attorney to do the same relating to your health and care needs.

Enduring Power of Attorney (EPA)

An EPA is an old version of what has now become Lasting Power of Attorney and relates to property and financial affairs.   If you made an EPA before 1st October 2007 (when it changed to a Lasting Power of Attorney) it is still valid, however you can no longer set up an EPA now.

How should I choose as my attorney?

It is imperative that you select someone that you trust as they could be making significant decisions about your finances and healthcare on your behalf. Your attorney must always have your best interests at heart.  Many people consider a partner or spouse, a friend, another family member, or a professional person, like a solicitor.  You may decide to nominate more than one attorney, but you will need to be clear about their role in decision making, and whether they all need to agree or not.

Putting a Lasting Power of Attorney in place

The first step is to complete a form available from the Office of the Public Guardian (OPG) which must be then registered with OPG to achieve validation, this usually takes around ten weeks.

You must sign the Lasting Power or Attorney with your attorney and an independent witness.  The witness must confirm that you have the mental capacity to appoint a lasting power of attorney and that you are not under any pressure to do.  The witness can be someone who you know well and trust or a professional such as your GP, a social worker or your solicitor.

If you have decided to set up two Lasting Power of Attorneys, one for finance and property and the other for health and welfare you will need to complete two separate forms.  Registering a lasting power of attorney is £82 for each one, although if you are receiving support from your local authority you may pay less.

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