What is Power of Attorney?
Power of Attorney is a commonly used legal term, but what does it mean and how can you get Power of Attorney?
Find out more in this guide below.
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If you give someone the Power of Attorney, you grant them the legal right to make decisions on your behalf on issues such as your finances, medical decisions and welfare. The Power of Attorney itself is a legal document.
The Power of Attorney document lets you, the donor, appoint one or more people (known as attorneys) to make important decisions on your behalf. You should apply for a Lasting Power of Attorney (LPA) while you still have the mental capacity to decide who should manage your affairs.
You can create an LPA so long as you’re over 18 years old and have ‘mental capacity’. LPAs can be set up by people at various stages of life, such as:
- Single people
- Young couples
- Married or cohabiting couples
- Parents or couples without children
- Business owners
- Employees.
Mental capacity refers to your ability to make decisions at any given time, or communicate your thoughts clearly. Knowing whether someone has mental capacity can be difficult; a patient with dementia, for example, may be able to make some decisions, but not others. When it comes to arranging your Power of Attorney, what matters is that you, the ‘donor’, have the mental capacity to understand the decision you’re making and its consequences.
You can choose to name your attorney at any time during adulthood. This could be for a range of reasons – for example:
- You’ve received a medical diagnosis (such as dementia) which has prompted you to make provisions to protect you and your loved ones.
- You’re in good health, but given the future is uncertain, you want to create an LPA in the event of an emergency.
- You’re in a stable long-term relationship (married or co-habiting) but haven’t arranged an LPA.
- You’re abroad for a considerable amount of time and want someone to manage your financial affairs in the UK.
- You have a short-term requirement (like an upcoming hospital stay following surgery) and you want someone to manage your affairs for a temporary period.
Healthcare professionals need permission before they start an examination, test or treatment. Signs that a patient has lost the ‘capacity’ to consent could include:
- Lapses in memory
- Difficulties in communicating thoughts
- An inability to understand information.
In this situation, healthcare professionals determine what’s best for that person. By granting a Lasting Power of Attorney to someone you trust, they can consent to treatment if you’re unable to. You can delegate all decision making or specify any treatments that you don’t want to undergo in advance.
Depending on the cause, a loss of ‘capacity’ can affect people of all ages, and be permanent or temporary. For example, conditions such as dementia have permanent symptoms, while panic or intoxication could have a short-term impact.
Any of these health challenges could affect your ability to consent to medical treatment at any given time. So no matter how old you are, it could be important for a loved one to have the legal right to manage your affairs with a Power of Attorney.
Additionally, a Living Will is another way to give an instruction if you don’t want to receive specific treatments in the future.
If you no longer have mental capacity and you haven’t set up a Power of Attorney document, someone else would need to apply to the Court of Protection if they wish to make decisions on your behalf. The court would then decide whether to grant a Deputyship Order and appoint the person as your ‘deputy’. This can be an expensive legal process, so by establishing the Power of Attorney document well in advance, you can protect you and your family from future costs.
How to assess mental capacity
Of course, it’s not just the ageing process that can impair someone’s ability to understand a Power of Attorney document. If someone has a severe learning disability, a mental health condition – such as schizophrenia – or a history of drugs or alcohol misuse, it could be vitally important for a loved one to obtain the legal right to manage their affairs.
For more guidance, the NHS publishes useful information on how to assess capacity.
While every situation is different, arranging the Power of Attorney can come at a difficult time for families. But hard as it may be to think about a life without mental capacity, there are many advantages of signing the Power of Attorney:
- Choice over your future – Having a trusted person make decisions on your behalf, rather than a court, is undoubtedly beneficial.
- Clarity with your family – Creating the Power of Attorney document is an opportunity to express your wishes to your family and discuss any questions or concerns they may have.
- Protection for your attorney – Making a clear legal declaration that a named person can manage your affairs would eliminate the prospect of anyone questioning their motives.
- Estate management – Appointing an attorney means decisions about your money and assets can be made more quickly, reducing delays when it comes to distributing an estate.
- Peace of mind – No one wants their future to look uncertain, but signing a Power of Attorney means you’ll have some assurance that decisions made on your behalf will reflect your wishes.
No, spouses do not automatically have Power of Attorney even if they are married or in a civil partnership. If you want your spouse to be able to make medical or financial decisions on your behalf, you will need to set up an LPA.
Types of Power of Attorney
It’s important to understand what is meant by Power of Attorney, as concepts like Enduring and Lasting Power of Attorney can be easily confused. Here are the definitions you should familiarise yourself with:
Lasting Power of Attorney
A Lasting Power of Attorney (LPA) is the most frequently used type of Power of Attorney you will encounter. It’s called a Lasting Power of Attorney because it’s designed to cover a long period of time, if required. The LPA does not expire, though it can be cancelled by the attorney, or the donor if they still have mental capacity.
You can make an LPA at any time, so long as you’re able to make decisions through your own volition. Often, a donor will give someone a Lasting Power of Attorney if they’ve been diagnosed with a serious illness, or anticipate that they may need someone to make decisions on their behalf in the near future.
There are two types of LPA:
- Property and financial affairs – this grants your attorney the right to make decisions about your property and money, which can include household bills, taxation, bank accounts, pensions, welfare benefits and selling a home.
- Health and care decisions – this enables your attorney to make decisions about your medical care, from washing to eating, as well as medical interventions if your life is in danger.
Enduring Power of Attorney
Following a change in the law in 2007, it’s no longer possible to make an Enduring Power of Attorney (EPA); you should take out an LPA instead. Previously, a registered EPA could be used to make decisions on behalf of someone before their mental capacity had been diminished.
Ordinary Power of Attorney
An Ordinary Power of Attorney (OPA) is a different proposition, as these are designed to give someone the right to make decisions on your behalf for a limited period of time. For example, if you’re unwell, recovering from an injury or overseas, you may wish to make an OPA and can set limitations on its powers if you wish. Unlike an LPA or EPA, an OPA doesn’t need to have been registered with the Office of the Public Guardian.
How to give Power of Attorney
If you wish to give someone the Power of Attorney, you can set this up in a few steps.
Plan your future with confidence
Making important decisions about your health, money and loved ones can be challenging to think about. But our guides for the over-50s provide plenty of helpful pointers, from witnessing a will to discussing death with your family. Find out more
