What is power of attorney?

In Wills and Probate

It's difficult to think about a time when you can no longer look after yourself. But it's important to plan for your future to make sure your loved ones have the legal capability to make the right decisions for you.

Reading about power of attorney

What is power of attorney?

Power of attorney allows you, the donor, to grant someone you trust the capacity to look after your affairs. As a donor, you have complete control over which affairs your attorney can deal with. There are also strict legal guidelines in place for your protection. Anyone who is over 18 and has mental capacity can be an attorney, including partners, relatives, and friends.

Ordinary power of attorney

Ordinary power of attorney normally lasts for a temporary period. It is best used when you’re unavailable to finalise specific legal or financial affairs and can be revoked at any time. For example, you can give your attorney the ability to sign for a new property on your behalf if you are out of the country or in hospital. You must be judged to have mental capacity (the ability to make and understand decisions for yourself) in order to grant ordinary power of attorney.

Lasting power of attorney

Lasting power of attorney (LPA) grants someone the ability to look after your affairs after you have lost the capacity to do so. Some of the common causes for the loss of mental capacity include stroke, coma, brain injuries, Alzheimer’s and other forms of dementia.

There are two types of LPA:

  1. Financial – gives your attorney the authority to look after all or just some of your finances. These might include your savings, your bills, or your property. You are legally entitled to ask your attorney for regular updates on your financial situation. The financial LPA can come into effect while you still have mental capacity or after you have lost it – you decide.
  2. Health and welfare – grants a loved one the power to make health and welfare decisions on your behalf. For example, your attorney can decide what medication or treatments you should receive. An attorney can’t make the decision to refuse life-saving treatments or ask for a Do Not Resuscitate in the event of a coma unless you formally grant them the power in your LPA.

Do not assume that the legal right to look after your affairs passes to your partner or spouse in the event that you no longer have the ability to do so. Once you have lost mental capacity, it is already too late to apply for power of attorney. This means your loved ones will have to go through a long and costly process through the court of protection to receive the right to manage your affairs.

When to get power of attorney?

It is never too early to apply for power of attorney, but there are some situations when it becomes even more important to start thinking about it. You should apply for power of attorney if you or a loved one are reaching old age, your doctor has recognised signs of mental deterioration, or before you undergo major surgery. Your attorney should be someone that you trust will have your best interests at heart.

How to get power of attorney?

Discussing the details of power of attorney can be unpleasant and emotional for both the donor and the attorney. The paperwork can also be complicated because both the financial and healthcare LPAs must be applied and paid for separately. A highly qualified solicitor can guide you through this process and make it easier for you.

As the wording and format of a power of attorney must be very specific, it’s important to choose an experienced and efficient solicitor.

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