There are two types of power of attorney:

 

Ordinary power of attorney

 

If you want to give someone full access to make decisions and take action concerning your finances while you still have mental capacity, you can set up an ordinary power of attorney.

This is a legal document giving someone else authority to act on your behalf. It is only valid while you still have mental capacity to make your own decisions about your finances, so that you can keep an eye on what the person making decisions for you (your attorney) is doing.

You can limit the power you give to your attorney so that they can only deal with certain assets, for example, your bank account but not your home.

 

You may want to set one up if, for example:

  • you need someone to act for you for a temporary period, such as while you’re on holiday
  • you wish someone to act for you only while you're able to supervise their actions.

A power of attorney gives the attorney (the person you choose to act for you) a legal document that proves their powers.

 

It’s up to you to decide what the power of attorney covers. It can be a general power, without restrictions, or give limited powers only to do a specific task, for example to sell a house. In either case, you can still also act for yourself.

 

How long does an ordinary power of attorney last?

 

An ordinary power of attorney is only valid while you are capable of giving instructions. It will end if:

  • you lose mental capacity to make your own decisions about your finances and are no longer able personally to supervise or direct the attorney
  • you revoke the power
  • the power is limited to a specific task which has been completed
  • the attorney dies or loses mental capacity.

 

Lasting power of attorney

 

A lasting power of attorney gives someone you trust the legal authority to make decisions on your behalf, if either you’re unable to in the future or you no longer wish to make decisions for yourself.

 

There are two types of LPA:

  1. for financial decisions
  2. for health and care decisions

1. LPA for financial decisions

 

This can be used while someone still has mental capacity. An attorney (the person who makes decisions for you) can generally make decisions on things such as:

  • buying and selling property
  • paying the mortgage
  • investing money
  • paying bills
  • arranging repairs to property.

2. LPA for health and care decisions

 

This covers decisions about healthcare as well as personal welfare and can only be used once a person has lost mental capacity. An attorney can generally make decisions about things such as:

  • where you should live
  • your medical care
  • what you should eat
  • who you should have contact with
  • what kind of social activities you should take part in.

You can restrict or specify the types of decisions your attorney can make or you can allow them to make all decisions on your behalf.

 

If you’re setting up an LPA for financial decisions, your attorney must keep accounts and make sure their money is kept separate from your money.

 

You can request regular details of how much is spent and how much income you have. This offers you an extra layer of protection. If you lose mental capacity, these details can be sent to your solicitor or a family member.

 

Lasting powers of attorney were introduced in October 2007, replacing the old system of enduring power of attorney (EPA) . An EPA created before October 2007 remains valid.

 

When is a lasting power of attorney valid?

 

An LPA will only be valid if you have:

  • the mental capacity to set it up
  • you have not been put under any pressure to create it.

It must be your decision and you must be able to trust your attorney, as you're giving them extensive power to make decisions about your life.

 

The LPA must be signed by a certificate provider who confirms that you understand it and haven’t been put under any pressure to sign it. They must be someone you know well or a professional person, such as a doctor, social worker or solicitor.

The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.

 

You must register the LPA while you have the mental capacity to do so. The LPA can’t be used during the registration process which takes at least four weeks. You can contact the OPG if you need to find out if your LPA has been registered.

 

If you lose mental capacity but signed the LPA while you still had mental capacity, the attorney can register it for you. You can get a certified copy from the OPG for a fee.

 

 

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On behalf of APS Legal & Associates Ltd, White Hart Yard, Bridge Street, Worksop, S80 1HR APS Legal & Associates is a member of the Institute of Professional Willwrite