Power of Attorney

by BDAA Trustee Anna Molter, a Solicitor at Barcan+Kirby

There are two types of Lasting Power of Attorney; one for your financial affairs and the other for health and welfare. The documents are prepared at a time when you are able to make decisions about who would be the most suitable person to “step into your shoes” and make decisions for you. The persons you appoint are called “attorneys”. They can be family members, friends or professionals.

The types of decisions your financial attorneys can make include:

  • Buying and selling property
  • Managing your investments and bank accounts
  • Claiming benefit entitlement
  • Paying any taxes which are due

The types of decisions your health and welfare attorney can make include:

  • The diet you follow i.e. vegetarian
  • Your day to day care needs
  • Where you live
  • Who visits you
  • What activities you take part in

A Lasting Power of Attorney is a legal document and it is very important that you give careful consideration to your choice of attorney.  How will the attorneys interact with each other, do they get on, do they live nearby.  You can have the same attorneys named in each document but you may decide that they should differ so that attorneys act with a degree of impartiality.

The attorneys can act jointly (make decisions together) or jointly and severally (together but also individually).

You can add guidance and conditions to the documents so that your attorneys must do certain things or may act in a certain way.

Attorneys must only act in your best interests and act in accordance with the Mental Capacity Act 2005 and its codes of practice.  Attorneys should only make decisions for you if you are unable to make a decision yourself. Every opportunity should be given to engage you in decision making.

When you make a Lasting Power of Attorney, you will need someone to act as your Certificate Provider. This can be a friend who has known you personally for two years or more; or a professional (doctor/solicitor who specialises in this type of work). They sign to say that you are able to make the Lasting Power of Attorney to confirm that you understand the document, that no fraud or pressure has been placed upon you to sign the document and there is nothing else of concern which would prevent the document being made.

The Lasting Power of Attorney has to be signed by all parties, you as the donor, the Certificate Provider and the attorneys. There are steps that can be taken if the donor cannot sign and someone can sign on their behalf.

You can choose to have persons notified of the creation of the Lasting Power of Attorney if you wish. This acts as a safeguard to raise concerns or objections to the creation of the document.

Once the document has been completed, you will need to apply to the Office of the Public Guardian to register the document. There is a fee of £82 to register each Lasting Power of Attorney but this can be reduced depending upon your income/benefits received.

It can take 9-12 weeks for the document to be registered so you will have to wait a while before the registered document comes back to you.

If you made an Enduring Power of Attorney before the end of September 2007, then this document will continue to have legal effect. It will need to be registered at the Office of the Public Guardian in the event that you become or are becoming mentally incapable of managing your affairs and there is a strict order in which persons are notified of the registration process.

Enduring Powers of Attorney only dealt with financial affairs, so if you wish to have a document regarding your health and welfare, then you will need to make a Health and Welfare Lasting Power of Attorney.