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Power of Attorney – what is all the fuss about?

Posted by Niamh Minihane

25-09-2018

Do I need a Power of Attorney?

It is important to understand what a power of attorney is, plus the difference between a property and financial Lasting Power of Attorney (LPA) and a health and welfare LPA.

First of all, what is a Power of Attorney?

A power of attorney is a legal document which enables you to give another person (‘your attorney’) authority to make certain decisions on your behalf. There are different types of power of attorney and you can set up more than one.

An LPA is the most common power of attorney.

There are two types of LPAs

A Property and Financial affairs LPA gives your attorney authority (subject to any restrictions imposed by you) to deal with and make decisions about your property and finances should you ever lose the mental capacity to do this yourself. You can also allow your attorney to use your LPA even though you have the mental capacity to make such decisions yourself at that time. For example, if you are going abroad, are injured in an accident or are otherwise physically unable to deal with your own affairs.
A Health and Welfare LPA gives your attorney authority to make welfare and health care decisions on your behalf but only if you ever lack the mental capacity to do this yourself. This can be extended to giving or refusing life sustaining treatment.

Who will I choose as my Attorney?

It is an important decision. You should therefore, take care whom you appoint as your attorney, as they should be trustworthy and have appropriate skills to make the decisions. You can appoint more than one attorney and you can decide how they act whether together or together and separately. You may also choose to appoint a replacement attorney.

When does it become effective?

It becomes effective as soon as it is registered with the Office of the Public Guardian.

Can I revoke a Lasting Power of Attorney?

Yes, at any time as long as you have the mental capacity, you can revoke your LPA.

I have an Enduring Power of Attorney (EPA), surely that’s ok?

EPAs were replaced by LPAs in October 2017. If you signed an EPA before 1^st October 2017, it will continue to be valid and usable in respect of property and finances only.

If you wish to give an attorney authority over your health and welfare you will need to make a Health and Welfare LPA.

What happens if I have not made an LPA or enduring power of attorney?

If you should ever lack the capacity to make a financial decision it may be necessary for an application to be made to the Court of Protection. This is both costly and time consuming. The person who applies on your behalf might not be the person who you want to act for you.

If you lack the capacity to make a health or welfare decision, some of these can be made without the need for a court application. This may mean however, that your wishes are not carried out. To avoid this and any potential disputes, you should appoint someone to make these decisions on your behalf by making a health and welfare LPA.

If you would like more information or would like to start the process please contact Niamh Minihane, Senior Associate in the Inheritance Protection team based in our Maidenhead office.