How to Maintain Your Control With Power of Attorney

Getting Power of Attorney doesn’t mean ‘signing your life away’. It’s a document that keeps you in control even when you’re not fully capable any more.

Your decision is final

Let’s keep this simple: Your attorney may act on your behalf – they can help you make decisions about your health and finances, or even choose for you.

But if you’re still mentally capable, your decision is final.

Your attorney couldn’t override you without proving you were no longer ‘of sound mind.’ Even if they could, they’d need to prove their decision was made in your best interests and that the decision, be it over money or care, is something you’d agree with and accept.

You choose the best Power of Attorney for you

You’ll find three different types of Power of Attorney available to you.  

Ordinary Power of Attorney is usually temporary, used when you’re going abroad or staying in hospital and need someone to look after you or your money and property.

Lasting Power of Attorney (LPA) is long-term, and has two versions:
  • Health & Welfare LPA looks after your care and medical treatment
  • Property & Financial LPA can manage your home and your money

You don’t need to get both at the same time – you might only want one. It’s entirely up to you and your circumstances.

No-one can force you to sign any Power of Attorney, and it won’t be legally valid if they do.

You choose your own attorneys

When you draft a Power of Attorney, you choose who you want to help you make decisions.

It’s just like choosing a witness or executor of your will. Your attorney should be someone you trust, who’s reliable, and who has your best interests at heart. Usually, you’d choose your partner, a relative, or close friend, but it’s completely up to you.

The only requirements for an attorney is that they are:
  • Over 18 years old
  • Mentally capable of making decisions

There’s no limit on the number of attorneys you can appoint. And you may appoint different attorneys as your Health & Welfare LPA and your Property & Financial LPA.

If you don’t have Power of Attorney in place and later need help looking after yourself, your care-givers will need to apply for a Court of Protection deputyship.

Your attorney must represent you and your best interests

Your attorney is your representative. They act on your behalf. There are checks to make sure decisions they take are in your best interests.

When making a decision on your behalf, attorneys must always consider:
  • What you would decide if you could
  • Your values, morals, political, and religious views

For example, a Property & Financial LPA can give money to someone close to you – a relative or friend – or to a charity you’ve previously donated to before. But they can’t loan money to their mates or donate to any old charities.

Expenses that fall outside of sustaining or increasing your standard of living will need to be okayed by the Court of Protection.

They also won’t be able to sell your house cheap, give it away, or buy it for themselves without getting legal advice first. And they’d need to discuss your living arrangements with a Health & Welfare LPA if you have one.

Your attorney must also check you can afford to spend money and it doesn’t impact things like the cost of your care.

You can start and stop Power of Attorney any time

So long as you have the mental capacity to make decisions for yourself, you can choose when Power of Attorney takes effect, and when it ends.

This is useful, as it’s best to get Power of Attorney now, rather than wait until you need it. It’s a bit like an insurance policy in that sense.

In the document, you decide when you want your attorney to begin helping you. For an Ordinary Power of Attorney, you might also want to put a specific limit on how long it lasts – after a set date or when you return to the UK.

And you can revoke your attorney’s powers at any time.

You choose what goes in the document

A Power of Attorney is a lot like a will – it states your wishes and instructions, and how you want them to be carried out. That’s why it’s usually a good idea to get both documents drawn up at the same time.
And you should be as specific as you like.

For instance, you could grant your Property & Financial LPA access to certain bank accounts, but not others.
You could outline medical treatments you don’t want to receive.  

Being explicit is integral to Power of Attorney – and a solicitor will be able to advise. This way, no-one can make decisions you’d disagree with, or contest your wishes.

So long as there’s no conflict between your LPA and your will, your attorney is bound by the LPA.

Your attorney won’t suddenly take over your estate if you die

The moment you pass away, Power of Attorney ends and your estate will be divided according to your will. A lot of people believe Power of Attorney is included in their will. It isn’t – it’s a separate document.

Your attorney can be named as a benefactor in your will. As you’d expect, that’s fairly common. But if you pass away, your attorney won’t automatically own your house and get all your money.

While attorneys can’t change an existing will, they can apply to the Court of Protection for a statutory will if you need one but are no longer able to make one yourself.

You don’t need to use a solicitor

It’s a good idea to use a Power of Attorney solicitor – it’s such an important document that you’ll want the peace of mind knowing that it’s all legal and correctly worded. You don’t want to leave room for ambiguity. 

However, it’s not a requirement. You can draw up your own DIY Power of Attorney document.

The important thing is to get it registered with the Office of the Public Guardian. You and your attorney can both do that, however it costs £82 and there are some extra forms to fill in. You’ll also need to have the document hand-signed by:
  • Your attorneys
  • Your witnesses
  • A ‘certificate provider’

Because it’s a thorough (and sometimes confusing) legal process, a lot of people like to chat to a solicitor first. They’ll be able to guide you through Power of Attorney and make sure you get it right first time.

Find and compare Power of Attorney solicitors near you with The Law Superstore quick quote form.