Advice

Power of Attorney

The person you care for may be able to manage their own money and affairs right now but they may become less able to do this over time. Setting up ‘power of attorney’ can give both you and the person you care for peace of mind, knowing there is a plan in place if they are unable to make important decisions in the future.

A power of attorney is a legal document that gives a person (or people) you trust the legal authority to help you make decisions, or, to make them for you if a time comes when you are no longer able to make decisions yourself.

In order to make a power of attorney the person making it (the donor) must have mental capacity at the time of making it.

There are different types of power of attorney for different circumstances:

• lasting power of attorney
• enduring power of attorney
• ordinary power of attorney

If the person you care for wants to make a power of attorney in case they lose mental capacity in the future, then only a Lasting Power of Attorney will be relevant.

Lasting Power of Attorney (LPA)

There are two types of LPA:

• property and financial affairs LPA
• health and welfare LPA

There is one form for property and financial affairs LPA and another for health and welfare LPA. If both types of LPA are being made then 2 separate forms will need to be completed.

Property and Financial Affairs LPA

A Property and Financial affairs LPA can give someone authority to deal with and make decisions about things like:

• buying or selling property
• bank, building society and other financial accounts
• welfare benefits
• tax affairs
• debts

The LPA must be registered before it can be used but the person making the LPA (the donor) chooses when they want this type of LPA to start. It might as soon as the LPA is registered or it might only be if, and when, they lose mental capacity to make their own decisions.

This type of LPA gives the attorney/s authority to make all decisions about the donor’s finances and property, unless the donor has included specific instructions to limit their authority when they made the LPA.

Attorney/s usually have to keep the donor’s money separate from their own and keep accounts to show this.

Health and Welfare LPA

An LPA for health and welfare can give someone authority to deal with and make decisions about things like:

• where the donor lives
• day-to-day care
• healthcare treatment
• what contact, if any, the donor should have with certain other people

A health and welfare LPA can be made which deals with all aspects of the donor’s personal welfare, or only certain things.

The LPA must be registered before it can be used but it can only be used when the donor has lost mental capacity to make their own decisions.

Making a Lasting Power of Attorney

You can get the LPA forms and an information pack from the Office of the Public Guardian.

You can either download these online here or order them by calling 0300 456 0300.

Alternatively, you can set up an LPA using the online service on GOV.UK. There is a guidance booklet within the pack providing detailed information about how to fill in the forms.

Register a Lasting Power of Attorney

Once completed the LPA forms need to be registered with the Office of the Public Guardian. The application to register the LPA can be made by one of the attorneys, named in the LPA, or the donor (if they still have mental capacity).

A registration fee of £82 per LPA is payable to the Office of the Public Guardian. People on a low income (under £12,000) can apply for a 50% reduction and those receiving certain means-tested benefits may be able to apply for an exemption.

The application form has more information about eligibility.

Information, advice and support

For further information, you can email enquiries@yorkcarerscentre.co.uk or call us on 01904 715490 to arrange an appointment with our Advice Worker. 

You may want to consider using a solicitor to help if you are unsure about the process, the family does not get on, or, there are complex assets, such as businesses or overseas property.

If so, use the Law Society’s Find a Solicitor tool. If appropriate, there is also The Association of Lifetime Lawyers (formerly known as Solicitors for the Elderly). 

York St Johns Law Clinic  may be able to help with creating Lasting Powers of Attorney

Alzheimer’s Society have a digital assistance service helping people affected by dementia who do not have access to the internet or a computer or are not able to use the online form. They create a Lasting Power of Attorney by using the online tool created by the Office of the Public Guardian and support through to the registration.

Ordinary Power of Attorney (OPA)

An OPA may be appropriate if you need to manage someones finances for a temporary period, for example if they are in hospital or abroad for a long period. The donor (the person giving over some of their rights to decision-making) must have mental capacity in order to make an OPA.

The OPA can give general authority over all their financial affairs or for something specific like the sale of a house. It becomes automatically invalid if the person giving the OPA loses capacity.

An OPA is useful in certain situations, but it is usually best to create an LPA instead.

There is no standard form available but specific wording needs to be used to create a valid document. Citizens Advice can provide information about the wording or get advice from a solicitor.

An OPA doesn’t need to be registered so it can be used as soon as it has been signed.

Enduring Power of Attorney (EPA)

It is no longer possible to make a new EPA. However, if an EPA was made before 1 October 2007, it can still be registered. If it is already registered, it will still be valid.

An EPA can only be used to look after someone’s property and financial affairs. If you want power of attorney to look after someone’s personal welfare, you may want to talk to them about making a Health and Welfare LPA if they still have mental capacity to do so.

To continue using an EPA after someone has lost their mental capacity, the EPA must first be registered with the Office of the Public Guardian. The EPA must be registered by an attorney named on the EPA and certain people must be notified of the intention to register the EPA. You can find out more information about registering an EPA and registration fees on GOV.UK