Power of Attorney


There are a number of reasons why you might need someone to make decisions for you e.g. you have been diagnosed with dementia. The Mental Capacity Act 2005 allows you to grant a Power of Attorney giving someone else the power to act for you and sets out principles to be followed when someone is acting on your behalf.

Help with managing your money

You may not need to grant a formal Power of Attorney but just need some help with some of the day to day practicalities. There are a number of options that might help you short of appointing an attorney:

•       You could add the name of someone to your bank account, so that they have access to your money for things such as paying bills.

•       You could set up direct debits or standing orders

•       You could have your benefits paid by giro cheque. If you sign the back of the cheque, you could then authorise a person you trust to cash the cheque on your behalf.

  • If you have income from state benefits only, such as State Pension and Pension Credit, someone can apply for authority to deal with your benefits by becoming an appointee.

Power of attorney

If you want to give someone full access to make decisions and take action concerning your finances, you can set up an Ordinary Power of Attorney. This is a legal document giving someone else authority to act on your (the donor’s) behalf. It is only valid while the donor still has mental capacity to make their own decisions about their finances, so that they can keep an eye on what their attorney is doing. You can limit the power you give to your attorney so that they can only deal with certain assets such as, for example, your bank account but not your home. There is a standard form of words to use to create an Ordinary Power of Attorney. You can buy a form (CON36) from legal stationers or you could see a solicitor or local advice agency to set one up.

Or you could grant a Lasting Power of Attorney (LPA), which unlike an ordinary power would continue to be valid if you were no longer able to make your own decisions. If, at some point in the future, you are unable to make your own decisions, someone else will need to make decisions on your behalf. This could be decisions about your property and financial affairs, such as paying your mortgage, investing your savings or buying items that you need. Or it could be decisions about your personal welfare, such as what you should eat, or whether you should consent to medical treatment. Before someone can make a decision on your behalf, they must have reasonable belief that you lack capacity to make a particular decision.

What is mental capacity? Mental capacity means being able to make decisions (difficulty communicating does not count).

How does someone decide that I lack mental capacity? There must be a reasonable belief that you lack capacity to make a particular decision and the person must be acting in your best interests.

Lasting Powers of Attorney

If you lack capacity in the future and you have someone who cares for you, they will need specific authority to make some decisions on your behalf, for example, if they need access to your money. While you still have mental capacity, you can choose to create a Lasting Power of Attorney (LPA) to give the person this authority.

There are two types of LPA: one that can cover decisions about the donor’s (the person who creates the LPA) property and financial affairs, known as a Property and Financial Affairs LPA, and one that can cover decisions about their healthcare and personal welfare, known as a Personal Welfare LPA. As a donor you can restrict or specify the types of decisions that the attorney can make, or you can allow the attorney to make all decisions on your behalf. One difference between the two types of LPA is that a Property and Financial Affairs LPA can be used while someone still has capacity, whereas a Personal Welfare LPA can only be used once they have lost capacity..

An attorney under a Property and Affairs LPA can generally make decisions on things such as:

•   buying or selling property

•   paying the mortgage

•   investing money

•  paying bills

•   giving people access to the donor’s financial information

•   arranging repairs to property.

An attorney under a Personal Welfare LPA can generally make decisions about things such as:

•   where the donor should live

•   whether the donor should consent to a certain type of medical treatment

•   what they should eat

•   who they should have contact with

•   what kind of social activities they should take part in.

When is an LPA valid?

An LPA will only be valid if the donor has mental capacity to set it up and the LPA has to be signed by a certificate provider who certifies that the donor understands the LPA and was not pressurised into signing. An LPA cannot be used until it has been registered with the Office of the Public Guardian. There is currently a fee of £120 for each LPA. If the donor has lost mental capacity, the attorney can register the LPA for them.

The role of the attorney

The role of attorney involves power and responsibility and in the wrong hands a power of attorney could be used to defraud you so only appoint someone you trust who is willing to take on the onerous responsibility. An attorney can only make decisions that you have given them authority to make. An attorney can claim back any expenses but they cannot claim for time spent carrying out their duties, unless you have appointed a professional attorney, such as a solicitor. An attorney must be over 18 and should not be a paid care worker.

When someone takes a decision in your best interests they must:

•    do everything possible to encourage you to participate in the decision

•    consider your feelings and wishes that you made in advance

•     consider your beliefs and values that could influence their decision

•     consult other people such as family, carers or friends.

(See the Office of the Public Guardian publication “Making decisions about your health, welfare or finances: who decides when you can’t?”)

What happens if I no longer have capacity to make an LPA?

In such a case the Court of Protection can:

•    decide whether someone has the mental capacity to make a decision

•  make an order relating to the personal welfare or property and financial affairs

•   appoint a deputy to make decisions on behalf of someone who lacks mental capacity. This is a similar role to that of attorney.

Appointing a deputy can be lengthy and costly, and you are not able to choose who is appointed to manage your affairs. It is much better to have an LPA in place.

Living wills

It is possible for people to make an “advance decision”, indicating that they wish to refuse certain types of medical treatment should they lack capacity.

Also an “advance statement” can be made which covers decisions about how you would like to be treated, including non-medical matters such as your food preferences, religious or other beliefs, and even whether you would prefer a bath or shower.

Only an advance decision is legally binding, but an advance statement should be taken into account when deciding what’s best for you.

Deprivation of Liberty Safeguards

To protect people who lack capacity to make a decision in a care home or hospital, the Deprivation of Liberty Safeguards (DOLS) were introduced to make sure that people are only deprived of their liberty when this is necessary for their own safety and to provide the care or treatment they need, and where a lawful procedure has taken place to authorise it.

For more on probate click on the drop down or revisit derby probate solicitors.