Power of Attorney

Definition

You may wish to prepare for a time when you can no longer manage the running of your day to day affairs or make decisions about your property and finances or about your health and welfare.

You can make a Lasting Power of Attorney (LPA) and can choose one or more people you trust to deal with all or some of your property and financial affairs or health and welfare when, and if it becomes a problem for you. You must apply for an LPA when you have capacity to do so.

People often appoint more than one “attorney” to act for them. This guards against abuse of the wide powers over property and finance that the Power of Attorney gives. It can also be a good idea because people may have different skills relating to property, finance or health and welfare. Attorneys can act “jointly” (where they must sign all transactions) or “jointly and severally” where only one person needs to sign. If you change your mind later about the person or people you have chosen you can revoke the document.

Types of Lasting Power of Attorney (LPA)

There are 2 types of Lasting Power of Attorney (LPA):

• Lasting power of attorney for property and financial affairs
• Lasting power of attorney for health and  welfare

These are two separate documents and must be registered with the Office of Public Guardian (OPG) before it can be used.

If you have LPA and you still have capacity and you are happy for your attorney to make decisions about your property or finances you are able to stipulate exactly what decisions you are happy for them to make e.g. paying of bills but not have the power to sell your house.

The LPA for property and financial affairs can take effect immediately or when you lose mental capacity to make decisions about your property and finances and this can be specified.

The LPA for health and welfare can only be used when you lose mental capacity to make those decisions yourself.

The Mental Capacity Act (MCA) 2005 allows you to make an “advance decision to refuse treatment” if this is important to you. The MCA Code of Practice gives details of how to make this advance decision. 

Enduring Power of Attorney (EPA)

If you have already made an Enduring Power of Attorney (EPA) or are acting on behalf of someone under an EPA, it will still be valid under the new legislation unless the person who made it decides to destroy it and replace it with an LPA.

An EPA must be registered when the person loses mental capacity to make decisions about their property and finances if it is to be used.

If someone has income from benefits only and no capital then their financial affairs can be managed by an Appointee through the Department of Work and Pensions.

If you have benefits and some capital savings then a court appointed deputy will be required.

If you have not made arrangements for others to manage your finances and you lose capacity then someone must apply for a court order via the Court of Protection to make decisions for you.

The Court of Protection can grant an urgent/interim order or an emergency court order, in certain circumstances e.g. when someone’s life or welfare is at risk and a decision has to be made without delay. If the court agrees they will either make a one off decision or they will appoint a deputy to manage and administer your property and financial affairs.

You can make an urgent application (interim application) if your applying or have applied to become someone’s deputy but your deputyship hasn’t been approved yet and you need to make a specific decision on the other persons behalf immediately.

Deputyship applications for property and financial affairs are taking about a year to be processed and deputyship awarded. A standard deputyship order will permit you to manage someone’s finances as they would on a day to day basis. If you require an order to end a tenancy, enter into a deferred payment agreement, sell a property or make gifts in excess of £250 per annum to a single individual, then a specific order will be required. Details of specific requirements need to be requested from the Court at the application stage.

The Court of Protection do not offer legal advice so you should always seek independent legal and financial advice. Administration of deputyship is overviewed by the Office of the Public Guardian (OPG). The OPG provide guidance via their pages on gov.uk to help you understand the extent of your powers as either an attorney or deputy, however it is recommended that you seek your own legal advice should the information not be held within those pages or decisions that are required are complex and may be outside the extent of the powers you hold.

You can apply to the Court yourself or the Court application can be arranged via a solicitor.

You can make an emergency application if you need a Court order for a decision in a very serious situation e.g. to stop someone who lacks mental capacity from being removed from where they live or to give them treatment for a serious medical condition. These would generally be considered as welfare applications and may be subject to a hearing before any decision is made.

Fees are payable to the Office of Public Guardian for application, supervision and annual reports. Other fees are payable depending on circumstances. The customer is responsible for meeting all charges relating to deputyship that are set by the Court of Protection.

Family members, friends or solicitors can apply to be the property and affairs deputy. Where there is no one willing or able to manage a customer's property and financial affairs then the Ccouncil would apply for both appointeeship and deputyship and make decisions on the customer’s behalf. The Council makes a charge for providing this service.