If you are concerned about the ability of a relative or friend to manage their own affairs or to make their own decisions, where you may need to step in to act on their behalf, there may still be time to make a Power of Attorney (POA).
There may be all sorts of reasons why a person needs your help, for example, they are temporarily ill and unable to leave the house, or perhaps because they have been diagnosed with a progressive illness that is likely to affect their mental capacity in the future.
In some cases you may be required to simply look after a person’s financial affairs, for example, paying bills or claiming benefits for them. In other cases, you may need to make serious and significant decisions on their behalf, for example, deciding where they should live or even whether they should receive life-sustaining treatment.
Below we examine the different types of Power of Attorney, what these mean and in what circumstances a POA can be used.
How to apply for Power of Attorney
You can’t simply take Power of Attorney, rather it must be willingly given to you by the individual in question. That person is known as the donor, whereby they are required to select and appoint a trusted person, or persons, to act as their attorney(s).
As such, the donor must have mental capacity, ie; the ability to make their own decisions, at the time of making a Power of Attorney. Furthermore, they must agree to you acting as their attorney.
The forms will need to be signed by the donor, each attorney appointed to act and what’s known as a certificate provider. This is an independent impartial person who is required to verify that the donor understands what they are signing and that they have not been pressured into making a Power of Attorney.
In the event that the individual in question already lacks the mental capacity to make decisions for themself, you will not be permitted to apply for a Power of Attorney on their behalf. In these circumstances, other options will need to be considered (see below).
Which type of Power of Attorney should you apply for?
There are three different types of Power of Attorney: Ordinary Power of Attorney, Lasting Power of Attorney and Enduring Power of Attorney.
An Ordinary Power of Attorney is only valid while the donor has the mental capacity to make their own decisions.
Typically, this type of POA will be used where the donor is struggling to manage their own affairs, for example, by reason of illness or disability, and they need someone to help them out temporarily.
If, however, you are looking for a more long-term arrangement, where you can act on the person’s behalf either now and/or in the event that they lose the ability to make their own decisions, the donor will need to consider setting up a Lasting Power of Attorney.
A Lasting Power of Attorney (LPA) will give you the authority to act on the donor’s behalf long-term, both while the donor still has the mental capacity to make their own decisions and continuing after they have lost this ability.
There are two types of LPA: one for financial decisions and one for health and welfare decisions. An LPA for financial decisions can be used while the donor still has mental capacity or, alternatively, the donor can elect for the LPA only to take effect if they can no longer make their own decisions.
An LPA for health and welfare decisions, on the other hand, will only come into force if the donor loses capacity.
LPAs effectively replaced Enduring Powers of Attorney (EPAs) in 2007. That said, an EPA that was entered into prior to then will still be valid, although any EPA will only give an attorney the authority to make decisions in relation to a person’s property and financial affairs.
Where an EPA is still in existence, it may be sensible for the donor to cancel this and create an LPA for both financial and health/welfare decisions, or to create an LPA for health and welfare to run alongside the existing EPA.
How to get Power of Attorney if someone has already lost their mental capacity
It is not possible to create a Lasting Power of Attorney after someone has lost their mental capacity, although an attorney can register a signed LPA on behalf of a donor in these circumstances.
If, however, you want to look after the affairs of someone who has already lost their mental capacity and does not have either a signed or registered Lasting Power of Attorney or an Enduring Power of Attorney, you will need to apply to the Court of Protection.
You can make an application for a decision to be made on a specific matter. This can be done at short notice, as little as 24 hours, in circumstances where a decision needs to be made urgently, for example, to protect a person’s health and welfare.
Where there is a continuing need to make decisions on a person’s behalf, you can also apply for what’s known as a Deputyship Order.
Typically, a deputy is a family member or someone who knows the person well. In some cases two or more deputies are appointed, whereby they can be asked either to act jointly on all decisions, or jointly and independently.
A deputy can make decisions about someone’s property, financial affairs and personal welfare, in the same way that an attorney can make decisions under an LPA. Equally, as with Lasting Powers of Attorney, the deputy will be required to act in the best interests of the individual who has lost their mental capacity.
If there is no relative or friend suitable or willing to act as a deputy, the Court of Protection can appoint a professional to act on behalf of the individual instead.
How to cancel Power of Attorney
If you decide that you no longer wish to act under a Power of Attorney, you are free to withdraw your assistance, although you will need to notify the Office of the Public Guardian to do so. You can do this using Form LPA 005. This will be sent to the donor if they still have mental capacity, as well as to any other attorneys.
It is not for you, however, as an attorney to cancel a POA. A Power of Attorney can only be cancelled by a donor, provided they have the mental capacity to understand what they are proposing.
If the donor lacks mental capacity, the Court of Protection may intervene to revoke a Power of Attorney where it is in the donor’s best interests to do so. The court may also intervene to remove an individual attorney who is not acting in the donor’s interests, or in accordance with the Code of Practice set out under the Mental Capacity Act 2005.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.