Quite sensibly, many people have already had that difficult conversation with their loved ones regarding what they’d like to happen in the event of their passing. It’s strange in some ways then that their plans might not be so solid for other ‘what if?’ scenarios including becoming too ill to make decisions properly. Power of Attorney solves this issue and can provide peace of mind for all concerned.
Power of Attorney is the passing of personal authority and decision-making ability to a trusted party, perhaps a friend or relative or a professional such as a solicitor. Whilst it may sound like a conversation for ‘then’, it’s actually an important conversation to have ‘now’ since in the event that the person loses the ability to make clear decisions, it’ll be too late to set up and the chance to carry out specific wishes will be permanently lost. Fortunately, although it is a serious business, it is a relatively simple thing to put together – and can then be left to wait until if and when the moment comes to implement it arrives.
There are two types of what is sometimes called a lasting power of attorney (LPA): health and welfare, and property and financial matters. Assuming you are 18 or over and have the mental capacity (the ability to make your own decisions) you can set up one or both and provide certainty for yourself that if, for example, your condition deteriorates and you can no longer make decisions, you will still have control over what happens to you and your affairs.
Health and welfare power of attorney can refer to any relevant clause you care to add to it such as your daily routine, including washing, dressing and eating as well as receiving medication and care. It can also serve to apply your wishes regarding moving into a care home or even for more important decisions such as receipt of life-sustaining treatment. (So long as you can make your own decisions, it will not be applied.)
Property and financial matters power of attorney similarly outlines how you would like your money and other financial matters dealt with whilst you live but after you may have lost the mental capacity to deal with things yourself. Matters again range from mundane bill payments and bank accounts to collecting your pension, right up to selling your home. (It can be used as soon as it is registered, with your permission.)
Selecting an attorney
Whilst you can select anyone over the age of 18 (with mental capacity to make their own decisions) to be your attorney, it is certainly worth giving careful consideration to who you choice. It may be a relative or friend, a professional such as a solicitor or your spouse or partner. In fact, you might choose to have more than one.
Apart from a large amount of trust towards the person you select you might also stop to think about how they run matters in their own life and whether or not they have a similar ‘world view’ to your own which may be comforting to know if you’re going to nominate them to make decisions regarding your life. You might choose to think about how they look after their money and even how well they make decisions as well as about how well you actually know them.
For sensible reasons you can’t choose someone who is subject to a Debt Relief Order or is bankrupt if you’re making a lasting power of attorney for property and financial affairs.
If there’s more than one attorney you’ll also need to decide how they will arrive at decisions – separately or together (‘jointly or severally’). Separately means that they can make decisions on their own whilst jointly requires that the attorneys must agree a decision before implementation. When you set up your LPA you can select other people to replace your attorneys in the event that they can no longer act for you. (They may pass away or become mentally incapacitated themselves.) Before the power of attorney is started, you can change your chosen attorney(s).
Registering a lasting power of attorney
When you’ve made your lasting power of attorney, you need to register it with the Office of the Public Guardian (OPG).
You can apply to register your LPA yourself if you’re able to make your own decisions or your attorney can also register it for you. (You’ll be told if they do and you have the right to object to it if you wish to.) It can take up to 10 weeks to register an LPA if there are no mistakes in the application. (If you’ve made a small mistake in your form – depending on the type of mistake, OPG may let you correct it and apply again within three months for £55.)
Although it costs money to register your LPA it is likely to be money well spent, in terms of the peace of mind it will bring you. It currently costs £110 to register each LPA. (Registering a property and financial affairs LPA and a health and welfare LPA costs £220.) You may be eligible for a reduction or exemption of costs if you are claiming means-tested benefits for low income.
Help with the process
Although you can complete the process of setting up a LPA yourself from scratch you might consider hiring a solicitor to make sure that everything is as it should be.
A professional will also be able to give you general guidance regarding what a LPA might look like for your circumstances and indeed take you through the different parts of the forms. (You’ll then need to sign the forms and gather attorneys and witnesses to do likewise.)
When you’ve made your lasting power of attorney, you’ll need to register it with the Office of the Public Guardian. Before you register, send a form to notify people (LP3) to all the ‘people to notify’ (also called ‘people to be told’) you listed in the LPA. They’ll have three weeks to raise any concerns with OPG. (If you’re using the online service to make and register an LPA, it will create and fill in the LP3 forms for you.)
Certify a copy
Confirming that a copy of your LPA is genuine is important so that, for example, your attorney can use it in the same way as the original – to prove they’ve got permission to make decisions on your behalf, such as those required to manage your bank account.
You can confirm that a copy of your LPA is genuine by ‘certifying’ it if you’re still able to make your own decisions. The simple way to certify a copy is to write the following text on the bottom of every page of the copy: “I certify this is a true and complete copy of the corresponding page of the original lasting power of attorney.”
On the final page of the copy, you must also write: “I certify this is a true and complete copy of the lasting power of attorney.” (You’ll also need to sign and date every page.)
Copies of your LPA can also be certified by a solicitor or a person authorised to carry out notarial activities.
End or change your LPA
Whilst lasting power of attorney is designed to ‘last’ it isn’t meant to trap you. In fact you can still end or change your lasting power of attorney even once it has been registered if you still have the mental capacity to make decisions for yourself. (You are also entitled to complain or voice concerns regarding your attorney if you feel they are not carrying out their responsibilities properly.)
A written statement, known as a ‘deed of revocation’ signed by you and witnesses sent to the OPG is all it takes to cancel the entire LPA although changes can be made using a partial deed of revocation along very similar lines.
Again, you can do this yourself or ask a solicitor to act for you.
There are also several other ways that your LPA can end that are largely out of your control. For example, as mentioned earlier, your attorney might pass away or lose mental capacity or if your attorney divorces you or ends your civil partnership that would also end the LPA.
Your attorney could also be removed by the Court of Protection and of course, your property and financial affairs LPA may also end if your attorney becomes bankrupt or subject to a Debt Relief Order (DRO).
In all cases your LPA will end automatically when you pass away. Your affairs will then be looked after by your executors or personal representatives from that point, not your attorney.
Help is available if you are unsure about whether making a lasting power of attorney is for you from the Office of the Public Guardian.
Office of the Public Guardian
Telephone: 0300 456 0300
Textphone: 0115 934 2778
Monday, Tuesday, Thursday, Friday, 9am – 5pm
Wednesday, 10am – 5pm
NB: There are small differences in the way in which LPA is set up in Scotland (see: www.publicguardian-scotland.gov.uk/power-of-attorney) or Northern Ireland (see: www.nidirect.gov.uk/articles/managing-your-affairs-and-enduring-power-attorney)