Bridge McFarland - Union Clients

What is a power of attorney?

A legal document in which you give another person (or persons) the ability to act on your behalf, and take decisions for you.  It can be a short term simple arrangement (a general power of attorney) or intended to last for many years, especially if you lose your mental capacity (a lasting power of attorney or LPA).

What can an attorney do?

An attorney under a general power of attorney can make financial and paperwork decisions for you, but only whilst you still have mental capacity. This type of power of attorney is often used where, for example, someone is going abroad or is unavailable to sign particular paperwork. It can only last for 12 months at a time.

There are two sorts of lasting power of attorney.

A property and affairs LPA allows someone else to make decisions for you about your finances and paperwork, such as bank accounts, state benefits, investments, or your house. Your attorney can act for you whilst you still have mental capacity, or after you have lost your mental capacity. Your attorney can do anything with your assets which you could have done, for example, paying your bills, filling in your tax return, or selling your house.

A personal welfare LPA allows your attorney to make personal welfare decisions for you - only if you cannot make these decisions yourself. Such decisions include where you live, who visits or does not visit you, or what sort of medical treatment you have (including whether or not you continue to receive medical treatment).

How is an LPA made?

There is a form to be completed, which has to be signed by the person granting the LPA (the donor) and the attorneys. There are various decisions to make when completing the form. Legal advice is helpful to ensure you make the right decisions, and the form is completed correctly.

A certificate provider must also sign the form to certify that the donor has mental capacity at the time they sign the LPA. A solicitor can act as a certificate provider.

Before the form can be used it must be registered with the Court of Protection, a process which generally takes about 8 weeks. It can be registered just after it is made, or left then and registered when it is needed.

What if someone loses their mental capacity and hasn’t signed an LPA?

If someone has not signed an LPA (or its predecessor, an enduring power of attorney), they cannot sign one now if they have lost their mental capacity. In that case, a relative, friend or professional has to apply to the Court of Protection to be appointed as a deputy for the person who has lost their mental capacity.

Once appointed, a deputy broadly has the same powers as an attorney to manage the finances and paperwork of the person who has lost capacity, although there are some differences between an attorney and a deputy. In particular, a deputy must file yearly accounts with the Court of Protection, whereas an attorney need not.

However, obtaining a deputyship order from the Court of Protection is a costly option. The costs of deputyship vary from case to case, but in broad terms it is about three times as expensive to obtain a deputyship order as it is to make an LPA.

For more information, or to discuss your requirements, please do not hesitate to contact a member of our team.