Powers of Attorney

There are different types of Powers of Attorney which are useful for appointing someone to act on your behalf if you are unable to do so yourself, or if you were to become unable to make your own decisions.

Assigning a Power of Attorney (POA) is often done at the same time as making a Will and can be an important part of estate planning. It can be a way to ensure your wishes are carried out, should you no longer be in a position to state them, and can protect you and your family if your circumstances change.

Our expert team can guide you through the relevant Powers of Attorney and their roles, but below is a general outline of the different POAs and their benefits and limitations.

General or Ordinary Power of Attorney (POA)

What is a General or Ordinary Power of Attorney?

This is a document which can be used by your appointed attorney, either for a specific purpose (for example, dealing with solicitors and estate agents for the purchase or sale of a property), indefinitely or for a set timeframe to deal with your finances generally.

You (the donor) may make the Power of Attorney because, for example, you live abroad but have property in the UK, or because you are ill or under long-term hospital care and cannot deal with matters yourself. So long as you have mental capacity, you would be able to appoint an attorney to act on your behalf.

A General or Ordinary Power of Attorney can also be useful to deal with your finances on your behalf whilst you are waiting for a Lasting Power of Attorney to be registered (so long as you still have mental capacity). As registration with the Office of the Public Guardian can take time, a General or Ordinary Power of Attorney can be used as an emergency document in the meantime, for instance if you knew that you were going into hospital for an operation and that you may be hospitalised for some time and unable to deal with your own finances. This can remove a lot of stress and uncertainty, so should be something you consider if you find yourself in this situation.

A General or Ordinary Power of Attorney cannot be used to cover any decisions on your behalf in respect of your health or welfare.

If you wish to discuss wills, probate, trust or powers of attorney with us, please call Simon Acworth on 01420 81276 or Alison Courtenay on 01420 81271. Alternatively, please fill in the form below.

Lasting Powers of Attorney (LPA)

What is a Lasting Power of Attorney?

An LPA is a legal document that allows you (the donor) to appoint people you trust (the attorneys) to make decisions on your behalf if you become unable to do so.

A Lasting Power of Attorney can seem complex and overwhelming, but it is essential for ensuring your wishes are respected if you can no longer make your own decisions.

What types of LPA are there?

There are two types of LPA, one to cover your Property and Financial Affairs and one to cover your Health and Welfare decisions.

Property and Financial Affairs LPA

This document allows your attorneys to manage your financial matters, such as bank accounts, property, and investments. It could involve moving funds between different accounts, investment funds, paying bills, setting up direct debits, arranging payment of care fees, selling property to pay for care or managing rental properties.

You can ask your attorneys to act on your behalf if you are having difficulty or cannot manage some decisions, or if you were physically incapacitated, even if you have mental capacity. Your attorneys can also act on your behalf if you do not have mental capacity.

Health and Welfare LPA

This document allows your attorneys to make decisions about your healthcare and welfare, including where you may live and what sort of care or medical treatment you should receive. It may also allow your attorneys to make decisions on who you should see or what your daily routine is like.

Your attorneys can only act on your behalf to make health and welfare decisions if you are no longer able to make decisions for yourself.

You can also give your attorneys the power to make life-sustaining treatment decisions on your behalf if needed in the future. This can be where life support or cancer treatment may be required, and you do not have the capacity to make these decisions yourself.

Can I specify particular treatment in my LPA?

Specifying Particular treatment would be better done as a Living Will or Advance Decision. You can include preferences or other instructions in your LPA to assist your attorneys with making decisions on your behalf.

What is an Advance Decision?

You can make a separate document alongside your LPA for Health and Welfare which sets out in more detail any particular medical treatment that you would want, including directions for resuscitation.

Who can be an attorney?

An attorney must be over the age of 18 and have the mental capacity to make decisions. They must not be subject to a bankruptcy order. They must be somebody you trust. You can choose a family member, friend, or a professional such as a solicitor. A professional would usually only act as a financial attorney if there were no family or other persons willing to act.

How many attorneys can I have?

You can have as many attorneys as you would like. However, too many attorneys could cause problems in the future if they do not all agree. It is more usual to appoint up to four attorneys. You can also appoint replacement attorneys to act if your attorneys are no longer able to.

How do I appoint my attorneys?

You will need to decide how many attorneys you would like to appoint. They can be appointed in different ways, either jointly for all decisions (i.e., they must all agree on and be informed of any decision), jointly and severally (which means that any of them could act on your behalf on their own and would not necessarily have to tell the others), or you can appoint your attorneys jointly for some decisions, such as selling property, and jointly and severally for others.

You then need to complete the relevant LPA form, either for Property and Financial Affairs or for Health and Welfare, with your details and those of your attorneys.

Your document then needs to be signed by you in front of a witness, and by a certificate provider. This is either a professional or someone who has known you for at least two years. They are signing to confirm that you understand the powers you are giving your attorneys and that you have not been coerced into making the document. Should you instruct us as your solicitors, we can act as your certificate provider.

How do I start the process to make an LPA?

You can obtain the form directly from the Office of the Public Guardian website and complete this yourself, or you can obtain professional support to make the process easier and less stressful.

Here at Downie & Gadban, we can take you through the whole process, helping you to choose your attorneys and how they will act, prepare your documents for you and arrange for you to sign. We can also act as your certificate provider. We will then arrange for your attorneys to sign your documents and register your documents on your behalf.

How much does it cost to set up an LPA?

If you seek professional advice, fees will vary. It is important to clarify these in advance to avoid unnecessary expense. Here at Downie & Gadban, we offer a fixed fee, depending on how many documents you want to make, i.e., one or both documents and for one person or for a couple.

There is also a registration fee payable to the Office of the Public Guardian of £82 per document.

You may be able to get a 50% remission or exemption from the registration fee if you are on certain benefits or if your gross annual income is less than £12,000.

Can I set up an LPA myself?

While it is possible to create an LPA on your own, seeking legal advice can ensure that your documents are correctly completed and that you understand all of the implications. Our team is experienced in advising on LPAs, so can make sure they accurately reflect your needs.

Do I need to register the LPA?

An LPA must be registered with the Office of the Public Guardian before it can be used. You can register it at any time while you still have mental capacity, although we would recommend that you register your document as soon as it is made. We can register your documents for you as part of the process.

If you lose capacity before registering your document, your attorney can register it on your behalf.

Can I change or revoke an LPA?

You can change or revoke your LPA at any time, as long as you have the mental capacity to do so. To revoke it, you would need to sign a Deed of Revocation and inform your attorneys, as well as registering the Deed with the Office of the Public Guardian.

If you revoke your LPA without having made another LPA in its place, you could be left with no LPA – leaving you vulnerable if you were to lose mental capacity.

What happens if I lose mental capacity and don’t have an LPA?

If you lose the ability to make decisions and don’t have an LPA in place, somebody will need to make an application to the Court of Protection to manage your affairs. The court can appoint a Deputy to act on your behalf; however, this can be a very lengthy and costly process. You would not have any power to choose who your Deputy would be, and it may not be someone who you would have chosen yourself. It is therefore far better to make an LPA while you have the mental capacity to do so.

Enduring Power of Attorney (EPA)

What is an Enduring Power of Attorney?

This is a legal document made by the donor to appoint attorneys to act on their behalf for financial and property decisions. It has not been possible to make an Enduring Power of Attorney since 2007, when Lasting Powers of Attorney came into force.

However, if you created an EPA before that date, it is still valid and can be used by your attorneys so long as you still have mental capacity.

If you should lose mental capacity, the attorneys will need to register the EPA with the Office of the Public Guardian.

Does an Enduring Power of Attorney cover my health and welfare?

An EPA does not cover your health and welfare, and your attorneys will not be able to make any health or welfare decisions on your behalf. You would need to make a separate LPA for Health and Welfare. This can be made alongside your EPA so long as you have capacity.

What happens if I lose capacity?

Your attorneys will need to register your EPA with the Office of the Public Guardian. Your EPA cannot be used once you lose capacity until it is registered.

How do I register an Enduring Power of Attorney?

An application needs to be made to the Office of the Public Guardian to register the EPA. Up to three people will need to be notified of the registration (similar to a Deputyship application) who may potentially wish to object to the registration. This may be family members or others with a close relationship to you.

The document will not be able to continue to be used until it is registered.

What is the cost of registering an Enduring Power of Attorney?

There is a registration fee of £82 payable to the Office of the Public Guardian.

Can my attorneys register my Enduring Power of Attorney at any time?

Your EPA can only be registered if you lose mental capacity. This could leave you in a vulnerable position as your attorneys will not be able to act on your behalf in the meantime. It may therefore be worthwhile to make and register Lasting Powers of Attorney.

We can advise on the best route to ensure you are adequately protected and your wishes represented, whatever your circumstances.

You can download our Guide to Lasting Powers of Attorney below:

The above information is for general guidance only and is not intended to replace legal advice. Any costs listed are accurate at the time of writing.